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LIBRARY 

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University  of  California. 


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A  MANUAL 

FOR 

COURTS-MARTIAL, 

COURTS  OF  INQUIRY.  AND 
RETIRING  BOARDS. 


AND  OF  OTHER 


PROCEDURE  UNDER  MILITARY  LAWc 


Revised  in  the  Judge-Advocate  General's  Office,  and  published 
by  authority  of  the  Secretary  of  War, 


USE  IN  THE  ARMY  OF  THE  UNITED  STATES. 


V     OF   THE 

UNIVERSITY 

OF  .  r, 

^CAi.tFOJ^^»^( Corrected  to  August,  1910.; 


WASHINGTON: 

GOVERNMENT  PRINTING  OFFICE. 

1910. 


u^. 


Qd^^ 


War  Department, 

Document  No.  370. 
Office  of  the  Judge-Advocate-General. 


ABBREVIATIONS. 

A.  R.— United  States  Army  Regulations  of.  1908. 
A.  W. — Articles  of  War. 
R.  S. — Revised  Statutes. 


(2) 


>/ 


War  Department, 
Office  of  the  Chief  of  Staff, 

Washington,  December  15, 1908. 
The  Manual  for  Courts-Martial,  Courts  of  Inquiry, 
and  Retiring  Boards,  and  of  other  Procedure  under 
Military  Law,  prepared  by  direction  of  the  Secretary  of 
War  for  use  in  the  Army  of  the  United  States,  is  ap- 
proved and  will  be  published  for  the  information  and 
guidance  of  all  concerned. 
By  order  of  the  Secretary  of  War: 

J.  Franklin  Bell, 
Major-General,  Chief  of  Staff. 

(3) 


2049^1 


Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/armylawOOunitrich 


MANUAL  FOR  COURTS-MARTIAL,  COURTS  OF 
INQUIRY,  AND  RETIRING  BOARDS,  AND 
OF  OTHER  PROCEDURE  UNDER 
MILITARY  LAW. 


INTRODUCTION. 


MILITARY  JURISDICTION. 

Sec.  I.  Military  Jurisdiction  is  of  four  kinds: 

1.  Military  Law;  which  is  the  legal  system  that  reg- 
ulates the  government  of  the  military  establishment. 
It  is  a  branch  of  the  municipal  law,  and  in  the  United 
States  derives  its  existence  from  special  constitutional 
grants  of  power. 

2.  The  Law  of  Hostile  Occupation  (Military  Govern- 
ment) ;  that  is,  military  power  exercised  by  a  belliger- 
ent by  virtue  of  his  occupation  of  an  enemy's  territory, 
over  such  territory  and  its  inhabitants.  This  belongs 
to  the  Law  of  War  and  therefore  to  the  Law  of  Nations. 
When  a  conquered  territory  is  ceded  to  the  conqueror, 
military  government  continues  until  civil  government 
is  established  by  the  new  sovereign. 

3.  Martial  Law  at  Home  (or,  as  a  domestic  fact) ;  by 
which  is  meant,  military  power  exercised  in  time  of 
war,  insurrection,  or  rebellion,  in  parts  of  the  country 
retaining  their  allegiance,  and  over  persons  and  things 
not  ordinarily  subjected  to  it. 

4.  Martial  Law  applied  to  the  Army;  that  is,  mili- 
tary power  extending  in  time  of  war,  insurrection,  or 
rebellion  over  persons  in  the  military  service,  as  to  obli- 
gations arising  out  of  such  emergency  and  not  falling 
within  the  domain  of  military  law,  nor  otherwise  regu- 
lated by  law. 

(5) 


6  ARREST   AND    CONFINEMENT. 

The  last  two  divisions  are  applications  of  the  doctrine 
of  necessity  to  a  condition  of  war.  They  spring  from 
the  right  of  national  self-preservation. 

Sec.  II.  The  Source  of  Military  Jurisdiction  is 
the  Constitution;  the  specific  provisions  relating  to  it 
being  found  in  the  powers  granted  to  Congress,  in  the 
authority  vested  in  the  President,  and  in  a  provision  of 
the  Fifth  Amendment. 

2.  Military  Law  is  derived  from  both  Written  and 
Univritten  Sources. 

The  Written  Sources  are  the  Articles  of  War,  adopted 
as  a  part  of  the  Revised  Statutes  of  the  United  States 
in  1874  and  since  amended  in  some  particulars;  other 
statutory  enactments  relating  to  the  military  service; 
the  Army  Regulations;  and  general  and  special  orders, 
and  decisions  promulgated  by  the  War  Department  and 
by  department,  post,  and  other  commanders. 

The  Umvritten  So2irce  is  the  "custom  of  war,"  con- 
sisting of  the  customs  of  the  service  both  in  peace  and 
in  war. 

Sec.  III.  Military  Tribunals  are  of  three  kinds,  viz: 

1.  Courts-Martial  (including  summary  courts),  for 
the  trial  of  offenders  against  military  law. 

2.  Courts  of  Inquiry,  for  examining  transactions  of, 
or  accusations  or  imputations  against,  officers  or  sol- 
diers. 

3.  Military  Cominissions,  for  the  trial  of  offenders 
against  the  laws  of  war  and  under  martial  law  founded 
in  necessity. 

ARREST  AND  CON^FIIVEMENT  BEFORE  TRIAE.i 

Sec.  I.  Arrest  of  Officers. — "Officers  charged  with 
crime  shall  be  arrested  and  confined  in  their  barracks, 
quarters,  or  tents,  and  deprived  of  their  swords  by  the 
commanding  officer."  - 


1  Omission  of  arrest  does  not  affect  the  jurisdiction  of  a  court. 

2  65th  A.  W. 


ARREST    AND    CONFINEMENT.  7 

2.  "  Only  commanding  officers  have  power  to  place 
officers  in  arrest,  except  as  provided  in  the  twenty- 
fourth  Article  of  War.  An  arrest  may  be  ordered  by 
the  commanding  officer,  in  person  or  through  a  staff 
officer,  orally  or  in  writing."  ^ 

3.  "An  officer  arrested  will  repair  at  once  to  his  tent 
or  quarters,  and  there  remain  until  more  extended 
limits  have  been  granted  by  the  commanding  officer. 
Close  confinement  will  not  be  enforced  except-  in  cases 
of  a  serious  nature."  - 

4.  "An  officer  in  arrest  will  not  wear  a  sword  nor 
visit  officially  his  commanding  or  other  superior  officer, 
unless  directed  to  do  so.  His  applications  and  requests 
of  every  nature  will  be  made  in  writing."' 

5.  "Officers  will  not  be  placed  in  arrest  for  light 
offenses.  For  these  the  censure  of  the  commanding 
officer  will  generally  answer  the  purpose  of  discipline. 
Whenever  a  commanding  officer  places  an  officer  in 
arrest  and  releases  him  without  preferring  charges  he 
will  make  a  written  report  of  his  action  to  the  depart- 
ment commander,  stating  the  cause.  The  department 
commander,  if  he  thinks  the  occasion  requires,  will  call 
on  the  officer  arrested  for  any  explanation  he  may  desire 
to  make,  and  take  such  other  action  as  he  may  think 
necessary,  forwarding  the  papers  to  The  Adjutant  Gen- 
eral of  the  Army  for  file  with  the  officer's  record,  or 
for  further  action."  ■* 

6.  "In  ordinary  cases  where  inconvenience  to  the 
service  would  result  from  it,  a  medical  officer  will  not 
be  placed  in  arrest  until  the  court-martial  for  his  trial 
convenes."^ 

7.  "  When  an  officer  is  put  in  arrest  for  the  purpose 
of  trial,  except  at  remote  military  posts  or  stations,  the 
officer  by  whose  order  he  is  arrested  shall  see  that  a 
copy  of  the  charges  on  which  he  is  to  be  tried  is  served 

1  Par.  930,  A.  R.  The  commanding  officer  of  a  regiment  is  a  "  command- 
ing officer"  within  the  meaning  of  the  65th  A.  W.,  even  thoiigh  the  regi- 
ment is  a  constituent  part  of  a  brigade  post  in  peace  or  a  brigade  in  war,  and 
he  does  not  cease  to  be  such  commanding  officer  while  part  of  his  regiment 
is  detached  from  the  brigade  post  or  brigade  except  only  as  to  officers  of  the 
detached  portion.     (Opinion  J.  A.  G.,  Jan.  29,  1910.) 

2  J<i.,  931.  3jc/„934.  ^Id.,  932.  a/d.,  933. 


8  ARREST   AND    CONFINEMENT. 

upon  hiin  within  eight  days  after  his  arrest,  and  that  he 
is  brought  to  trial  within  ten  days  thereafter,  unless  the 
necessities  of  the  service  prevent  such  trial;  and  then 
he  shall  be  brought  to  trial  within  thirty  days  after  the 
expiration  of  said  ten  days.  -  If  a  copy  of  the  charges  be 
not  served,  or  the  arrested  officer  be  not  brought  to 
trial,  as  herein  required,  the  arrest  shall  cease.  But 
officers  released  from  arrest,  under  the  provisions  of  this 
article,  may  be  tried,  whenever  the  exigencies  of  the 
service  shall  permit,  within  twelve  months  after  such 
release  from  arrest.''^ 

Sec.  II.  Arrest  and  Confinement  of  Soldiers. 

1.  Noncommissioned  officers  against  whom  charges 
may  be  preferred  for  trial  will  be  placed  in  arrest  in 
their  barracks  or  quarters.  They  will  not  be  confined 
in  the  guardhouse  in  company  with  privates,  except  in 
aggravated  cases  or  where  escape  is  feared.^ 

2.  Noncommissioned  officers  in  arrest  will  not  be  re- 
quired to  perform  any  duty  in  which  they  may  be  called 
upon  to  exercise  command.  Noncommissioned  officers 
in  confinement  will  not  be  sent  out  to  work, 

3.  Soldiers  against  whom  charges  may  be  preferred 
for  trial  by  summary  court  will  not  be  confined  in  the 
guardhouse,  but  will  be  placed  in  arrest  in  quarters, 
before  and  during  trial  and  while  awaiting  sentence, 
except  when  in  particular  cases  restraint  may  be 
necessary."^ 

4.  Privates  against  whom  charges  may  be  preferred 
for  trial  by  general  court-martial  will  be  confined  in  the 
guardhouse  before  and  during  trial.  While  awaiting 
trial  and  sentence,  or  undergoing  sentence,  they  will,  if 
practicable,  be  kept  apart  from  privates  confined  for 
minor  offenses  or  by  sentence  of  an  Inferior  court.'* 

1  71st  A.  W. 

2  Par.  937,  A.  \i.     As  to  placing  soldiers  in  irons,  st-o  pui^c  ()9,  par.  ',\,pi)sl. 
3 Par.  941,  A.  K.  4  /</.,  940. 


ARREST   AND    CONFINEMENT.  9 

5.  Privates  in  confinement  awaiting  trial  will  not  be 
sent  to  work  with  prisoners  undergoing  sentence  if  it 
can  be  avoided;  but  may,  in  the  discretion  of  the  com- 
manding officer,  be  required  to  attend  drills  or  be  sent 
to  work  during  the  usual  working  hours  under  charge 
of  a  special  sentinel.' 

6.  Privates  in  arrest  may,  in  the  discretion  of  the 
commanding  officer,  be  required  to  attend  parades, 
inspections,  drills,  school,  or  other  military  duties  and 
to  assist  in  policing  in  and  around  their  barracks. 

7.  Except  as  provided  in  the  24th  Article  of  War,  or 
when  restraint  is  necessarj^  no  soldier  will  be  c6nfined 
without  the  order  of  an  officer,  who  shall  previously 
inquire  into  his  offense.  Arrest  or  confinement  without 
trial  as  a  punishment  for  an  offense  is  forbidden.  An 
officer  authorizing  the  arrest  or  confinement  of  a  soldier 
will,  as  soon  as  practicable,  report  the  fact  to  his  com- 
pany or  detachment  commander.'^ 

Sec.  III.  General  Provisions  Relating  to  the 
Arrest  of  Officers  and  Soldiers. 

1.  "No  *  *  *  officer  commanding  a  guard  shall 
refuse  to  receive  or  keep  any  prisoner  committed  to  his 
charge  by  an  officer  belonging  to  the  forces  of  the 
United  States;  provided  the  officer  committing  shall,  at 
the  same  time,  deliver  an  account  in  writing,  signed  by 
himself,  of  the  crime  charged  against  the  prisoner."-^ 
' '  Every  officer  to  whose  charge  a  prisoner  is  committed 
shall,  within  twenty-four  hours  after  such  commitment, 
or  as  soon  as  he  is  relieved  from  his  guard,  report  in 
writing,-*  to  the  commanding  officer,  the  name  of  such 
prisoner,  the  crime  charged  against  him,  and  the  name 
of  the  officer  committing  him.     *    *    *     "^ 

2.  ' '  If  there  are  any  prisoners  with  no  record  of  charges 
against  them,  the  old  officer  of  the  day  will  report  that 

1  Par.  940,  A.  R.  2 7,7.^  937  and  938.  3  67th  A.  W. 

4 Thi* report  is  usually  written  in  the  "Guard  Report,"  and  presented  to 
the  commanding  officer  by  the  old  officer  of  the  day  at  guard  mounting, 
£-68th  A.  W. 


10 


ARREST   AND    CONFINEMENT. 


fact  to  the  commanding  officer,  who  will  give  the  nec- 
essary instructions."^  No  officer  or  soldier  put  in  ar- 
rest or  confinement  will  be  so  restrained  more  than 
eight  days,  or  until  such  time  as  a  court-martial  can  be 
assembled."^ 


1  Par.  942,  A.  R. 


!70tb  A.  W. 


COURTS-MARTIAL. 


COMPOSITION. 


1.  Courts-Martial  are  composed  of  commissioned 
officers  only.  All  officers  of  the  Regular  Army,  except 
those  on  the  retired  list,^  are  eligible  for  detail  for  the 
trial  of  offenders  belonging  to  the  Regular  Army;  -  but 
no  officer  will  be  detailed  for  the  trial  of  an  officer 
superior  to  himself  in  rank  when  it  can  be  avoided.^ 

2.  Officers  of  the  Regular  Army  and  of  the  Marine 
Corps,  detached  for  service  with  the  Army  by  order  of 
the  President,  may  be  associated  together  for  the  trial 
of  offenders  belonging  to  either  of  these  bodies.^  But 
with  this  exception  officers  of  the  Regular  Army  are 
not  competent  to  sit  on  courts  for  the  trial  of  offenders 
belonging  to  other  forces.^ 

3.  Officers  of  volunteers  and  of  the  militia,  when  the 
latter  are  called  into  the  service  of  the  United  States, 
are  competent  to  act  as  members  of  courts  for  the  trial 
of  regular  officers  or  soldiers.  Militia  officers  are  also 
competent  to  sit  upon  courts  for  the  trial  of  volunteers. 
But  the  majority  membership  of  courts-martial  for  the 
trial  of  the  militia  must  be  composed  of  militia  officers.*' 

4.  In  the  United  States  military  ser^dce,  the  follow- 
ing-named courts-martial  are  authorized:  1st,  the  ' '  Gen- 
eral Court-martial;"  2d,  the  "Summary  Court;" 
3d,  the  "Garrison  Court-martial;"  4th,  the  "Regi- 
mental Court-martial." 

1  Sec.  1259,  R.  S.  But  the  Secretary  of  War  may  assign  retired  officers, 
with  their  consent,  upon  courts-martial,  courts  of  inquiry,  and  boards. 
Act  of  April  23,  1904.     (33  Stat.  L.,  264.) 

2  Contract  surgeons,  dental  surgeons,  and  veterinarians  are  not  eligible  to 
sit,  and  chaplains  are  not  in  practice  detailed  as  members  of  general  courts- 
martial. 

3  79th  A.  W.  i  78th  A.  W.  »  77th  A.  W. 

632  Stat.,  776,  sec.  8,  as  amended  by  sec.  6,  Act  of  May  27,  1908  (G.  0.  99 
A.  G.  0.,  1908).  However,  in  view  of  the  provisions  of  the  77th  A.  W.  offi- 
cers of  the  Regular  Army  are  not  competent  to  sit  on  courts-martial  for  the 
trial  of  militia  officers. 

(11) 


12  CONSTITUTION. 

5.  The  General  Court-martial,  being  the  most  impor- 
tant, "will  be  first  considered — the  others,  ordinarily 
called  "  Inferior  Courts-martial,"  in  the  order  named. 
But,  as  all  courts-martial  have  much  in  common  in 
regard  to  their  jurisdiction,  procedure,  punishment, 
etc.,  the  text  may,  as  a  rule,  be  regarded  as  apposite  to 
all,  unless  the  general  court  is  specially  mentioned. 
Exceptions  in  regard  to  jurisdiction,  etc.,  will  be  made 
as  each  inferior  court  is  considered. 

6.  A  General  Court-martial  may  consist  of  any  num- 
ber of  members  from  five  to  thirteen,  inclusive,  and  a 
judge-advocate;  but  of  not  less  than  thirteen  members 
when  this  number  can  be  convened  without  manifest 
injury  to  the  service.^  When,  in  the  course  of  a  trial, 
the  court  is  reduced  in  number  by  reason  of  absence, 
challenge,  or  the  relieving  of  members,  it  may  proceed 
with  business  so  long  as  five  members  remain.  When 
from  any  cause  a  general  court  is  reduced  below  the 
minimum,  five,  it  can  transact  no  other  business  than 
to  direct  the  judge-advocate  to  report  the  fact  to  the 
convening  authority  and  to  adjourn  to  await  further 
orders.  In  such  a  case,  if  the  trial  has  not  been  entered 
upon,  new  members  may  be  added;  but  if  any  testimony 
has  been  taken,  the  court  should  preferably  be  dissolved 
and  a  new  one  ordered.^ 

CO^fSTITUTION. 

1.  The  President  is  empowered  to  institute  general 
courts-martial — 1st,  as  Commander-in-Chief  of  the 
Army,  under  the  Constitution;  2d,  in  the  special  con- 
tingency mentioned  in  the  next  paragraph;  3d,  in  the 
particular  cases  provided  for  by  section  1230,  Revised 
Statutes. 

2.  Any  general  officer  commanding  an  army,  a  terri- 
torial division,  or  a  department,  or  colonel  commanding 
a  separate  department,  may  appoint  a  general  court- 
martial  whenever  necessary.^    But  when  any  such  com- 

1  75th  A.  W.  "A  decision  of  the  appointing  authority  as  to  the  number 
that  can  be  assembled  without  injury  to  the  service  is  conclusive."  (Par. 
952,  A.  R.) 

2  For  form  of  order  for  general  court,  see  page  147,  post. 
8  See  par.  4,  this  article, 


JURISDICTION.  13 

mander  is  the  accuser  or  prosecutor  of  any  officer  under 
his  command  the  court  must  be  appointed  by  the  Presi- 
dent} In  time  of  war  this  power  is  extended  to  the 
commander  of  a  tactical  division  or  of  a  separate  bri- 
gade; but  in  this  case  when  such  commander  is  the 
accuser  of  any  person  under  his  command  the  court 
must  be  appointed  by  the  next  higher  commander.- 

3.  The  Superintendent  of  the  United  States  Military 
Academy  has  power  to  convene  general  courts-martial 
for  the  trial  of  cadets,  subject  to  the  same  limitations 
and  conditions  now  existing  as  toother  courts-martial.^ 

4.  The  officer  who  appoints  a  court-martial — general, 
garrison,  or  regimental — may  dissolve  it,  and  control 
its  existence,  but  not  the  subject-matter  of  its  delibera- 
tions. In  the  absence  of  special  orders  or  legislation  to 
that  effect,  personal  presence  within  the  territorial 
limits  of  his  department  is  not  essential  to  the  validity 
of  commands  given  by  a  department  commander  to  be 
executed  within  such  limits,  such,  for  instance,  as  the 
appointment  of  a  court-martial.'* 

JURISDICTION. 

Sec.  I.  Courts-martial  derive  their  existence  solely 
from  acts  of  Congress,  and  their  jurisdiction  is  limited 
to  the  purpose  of  the  maintenance  of  military  disci- 
pline. Their  decisions,  within  their  jurisdiction,  are 
not  reviewable  by  any  courts  whatever.^  The  30th 
Article  of  War  relates  to  an  exceptional  procedure,  not 
necessary  to  consider  in  this  connection. 

2.  Courts-martial  have  exclusive  jurisdiction  to  try 
acts  constituting  military  offenses  only,  and  also  juris- 
diction to  try  acts  which,  besides  constituting  military 
offenses,  are  civil  crimes.     In  the  latter  case  the  military 

i72d  A.  W.  As  to  when  a  commander  is  "  the  accuser  or  prosecutor," 
see  Digest  Opin.  J.  A.  G.,  §§  186,  187,  188. 

2  73d  A.  W. 

3  Sec.  1326,  R.  S. 

4  See  par.  193,  A.  R.  The  authority  to  fionvene  a  court-martial  or  to 
relieve  or  detail  members,  etc.,  can  not  be  delegated  to  a  staff  officer  during 
the  absence  from  his  department  of  the  commander  (Digest  Opin.  J.  A.  G., 
§  185). 

5 See  Digest  Opin.  J.  A.  G.,  §  992,  and  note. 


14  JURISDICTION. 

ordinarily  gives  precedence  to  the  civil  court;  in  general, 
however,  that  jurisdiction  which  has  first  fully  attached 
is  properly  allowed  to  have  the  precedence,  and  when 
an  officer  or  a  soldier  has  been  arraigned  before  a  duly 
constituted  court-martial  for  an  offense  triable  by  it, 
the  jurisdiction  thus  attached  can  not  be  set  aside  by 
the  process  of  a  State  court.^ 

3.  As  regards  persons,  courts-martial  have  jurisdic- 
tion, at  all  times  and  in  all  places,  over  officers  and  sol- 
diers of  any  troops,  whether  militia  or  others,  mustered 
and  in  pay  of  the  United  States.-  over  officers  and  sol- 
diers of  the  marines,  when  detached  for  service  with 
the  Army,'^  over  persons  who  fraudulently  enlist  in  the 
service  of  the  United  States  and  receive  pay  or  allow- 
ance thereunder,*  and  over  offenders,  in  general,  to 
whom,  owing  to  the  commission  of  a  crime,  military 
jurisdiction  has  legally  attached — as  by  an  arrest  or 
confinement — before  expiration  of  term  of  service,  pro- 
vided such  jurisdiction  is  not  terminated  by  their  dis- 
charge. This  jurisdiction  over  persons  in  the  military 
service  covers  all  military  offenses  committed  by  them, 
whether  within  or  beyond  the  territorial  jurisdiction  of 
the  United  States.     Military  offenses  are  not  territorial. 

4.  As  a  rule,  military  jurisdiction  ends  when  a  sol- 
dier is  discharged.  The  present  exceptions  to  this  rule 
are,  discharged  officers  and  soldiers  guilty  of  fraud 
against  the  United  States  under  the  60th  Article  of 
War;  discharged  officers  granted  trial  after  summary 
dismissal,  under  section  1230,  Revised  Statutes;  and 
military  convicts.^ 

iSee  Digest  Opin.  J.  A.  G.,  §  1036,  and  notes.  Par.  963,  A.  R.,  provides 
that  "in  order  that  military  jurisdiction  may  promi)tly  vest,  charges  will 
be  preferred  immediately  in  every  case  that  is  subject  to  military  jurisdic- 
tion but  in  which  the  offense  is  of  such  a  nature  that  it  is  possible  for  the 
civil  courts  also  to  claim  jurisdiction." 

-  64th  A.  W.     This  includes  retired  officers  and  soldiers. 

3  Sec.  1621,  K.  S. 

4  Act  of  July  27,  1892;  see  G.  0.  57,  A.  G.  0. 1892.  A  fraiididoit  cvllstment 
is  an  enlistment  procured  by  means  of  a  willful  misrepresentation  in  regard 
to  a  qualification  or  dis(iualification  for  enlistment,  or  by  intentional  con- 
cealment of  a  disqualification,  which  has  had  the  effect  of  causing  the  en- 
listment of  a  man  not  qualified  to  be  a  soldier,  and  who  but  for  such  false 
representation  or  concealment  would  have  been  rejected. 

6  Act  approved  June  18,  1898,  page  1^0, post. 


f    UNIVERSITY    I 

[G^.  OF  fd 


JURISDICTK 

5.  In  time  of  war  this  jurisdiction  extends  to  "  all  re- 
tainers to  the  camp  and  all  jDersons  serving  with  the 
armies  of  the  United  States  in  the  field,  though  not 
enlisted  soldiers;"^  to  any  person  who  "relieves  the 
enemy  with  money,  victuals,  or  ammunition,  or  know- 
ingly harbors  or  protects  an  enemy ; "  ^  or  who ' '  holds  cor- 
respondence with,  or  gives  intelligence  to,  the  enemy, 
either  directly  or  indirectly;  '"^  and  to  spies. ^ 

6.  As  regards  offenses,  the  jurisdiction  embraces,  the 
offenses  specifically  defined  in  the  Articles  of  War,  or 
included  under  the  general  terms  of  the  61st  and  62d 
articles;  the  offense  of  military  persons  trading  with 
the  enemy ,^  and  that  of  fraudulently  enlisting  in  the 
service  of  the  United  States.^ 

7.  A  court  having  once  duly  assumed  jurisdiction  of 
an  offense  and  person,  can  not,  by  any  wrongful  act  of 
the  accused,  be  ousted  of  its  authority  or  discharged 
from  its  duty  to  proceed  fully  to  try  and  determine, 
according  to  law  and  its  oath.  Thus  the  fact  that, 
pending  the  trial,  the  accused  has  escaped  from  mili- 
tary custody,  furnishes  no  ground  for  not  proceeding  to 
a  finding,  and,  in  the  event  of  conviction,  to  a  sentence, 
in  the  case;  and  the  court  may  and  should  find  and 
sentence  as  in  any  other  case. 

Sec.  II.  General  Courts-Martial  have,  as  regarclsper- 
S071S  and  u'ith  reference  to  other  courts-martial,  exclusive 
jnrisdictio7i  over  officers,''  cadets,^  and  "  candidates  for 
promotion. ' '  ^  Over  enlisted  men,  other  than  candidates 
for  promotion,  and  military  convicts,  they  have  concur- 
rent jurisdiction  with  the  Inferior  courts'"  in  cases  cogni- 
zable by  the  latter. '^ 

I  63d  A.  W.  2  45th  A.  W.  3  46th  A.  W. 

4  Sec.  1343,  R.  S.  a  Sees.  5306  and  5313,  11.  S. 

6  Act  of  July  27,  1892;  see  G.  0.  57,  A.  G.  0.,  1892.     For  definition  of 
fraudulent  enlistment,  see  page  14,  note  4,  ante. 
1 83d  A.  W.  .  8  Sec.  1326,  R.  S. 

9  Act  of  July  30,  1892;  G.  0.  79,  A.  G.  0.,  1903. 

10  They  have  concurrent  jurisdiction  with  garrison  and  regimental  courts- 
martial  in  time  of  war  over  the  persons  mentioned  in  the  63d  A.  W. 

II  Par.  967,  A.  R.,  prescribes  that  noncommissionedofficers  will  not,  if  they 
object  thereto,  be  brought  to  trial  before  regimental,  garrison,  or  summary 
court-martial  without  the  authority  of  the  officer  competent  to  order  their  trial 
by  general  court-martial.    See  also  act  approved  June  18,1898,  page  130,i)os^ 


16  CHARGES   AND    SPECIFICATIONS. 

2.  As  regards  offenses,^  they  have  exclusive  jurisdic- 
tion over  all  offenses  punishable  capitally,^  and  over 
those  set  forth  in  the  58th  Article,  when  committed  in 
time  of  war.  Over  other  offenses  they  have  concurrent 
jurisdiction  with  the  inferior  courts;  but  all  offenses 
for  which  the  limit  of  punishment  is  in  excess  of  the 
limits  of  the  punishing  power  of  an  inferior  court,  as 
well  as  all  serious  noncapital  offenses  for  which  limits 
of  punishment  have  not  been  prescribed,  will,  when 
practicable,  be  tried  by  general  court-martial. 

CHARGES  AND  SPECIFICATIONS. 

Sec.  I.  A  military  charg'e  corresponds  to  a  eivilindict- 
vient.  It  consists  of  two  parts — the  technical ' '  charge,' ' 
which  designates  the  alleged  offense  in  general  terms, 
and  the  "  specification,''  which  sets  forth  the  facts  con- 
stituting the  same.  The  requisite  of  a  charge  is,  that  it 
shall  be  laid  under  the  proper  Article  of  War  or  other 
statute;  of  a  specification,  that  it  shall  set  forth  facts 
sufficient  to  constitute  the  particular  offense.  Under 
the  general  term  "  charges, "  any  number  of  technical 
charges  and  their  specifications  may  be  included. 

2.  When  an  Article  of  War  relates  to  but  one  kind  of 
offense,  the  charge  may  be  laid  as  a  violation  of  such 
article.  If  the  offense  has  a  technical  name  or  descrip- 
tion known  to  the  service,  such  as  "Desertion,"  "Ab- 
sence-without-leave,"  "  Sleeping^on  post,"  etc.,  it  may 
be  charged  simply  as  such,  or,  preferably,  also  laid 
under  the  appropriate  Article  of  War.  A  charge  laid 
under  the  61st  Article  of  War  will  properly  describe 
the  offense  as  "  conduct  unbecoming  an  officer  and  a 
gentleman."  A  charge  laid  under  the  62d  Article  of 
War  may  give  the  name  or  description  of  the  offense, 
alleging  it  to  be  "  in  violation  of  the  C2d  Article  of 
War,"  or  may  describe  it  as  "conduct  to  the  prejudice 
of  good  order  and  military  discipline." 

1  Military  offenses,  wheresoever  comniitted,  are  punishable  under  the 
Articles  (jf  War;  see  page  14,  par.  3,  ante. 

2  83d  A.  W. 


CHARGES   AND    SPECIFICATIONS.  17 

3.  When  an  offense  is  specifically  provided  for  in  an 
Article  of  War  the  charge  will  be  laid  under  that  article 
and  not  under  the  6'2d  Article.  Especially  is  it  wrong  to 
lay  a  charge  under  the  62d  Article  when  the  offense  falls 
under  an  article  which  prescribes  a  fixed  punishment. 

4.  In  case  of  an  absence  from  any  appointed  parade, 
drill,  or  other  exercise,  but  not  from  the  limits  of  the 
post,  the  charge  should  be  laid  under  the  33d  Article  of 
War;  in  case  of  absence  from  the  post,  or  command, 
under  the  32d;  and  sometimes,  in  order  that  the  court 
may  be  able  to  judge  of  the  full  nature  of  the  offense, 
under  both,  as  when  some  duty,  other  than  an  ordinary 
roll  call,  is  neglected;  e.  g.,  when  a  soldier,  regularly 
detailed  for  guard,  absents  himself  not  only  from  guard 
mounting  but  also  from  his  post. 

5.  Soldiers  found  drunk  on  any  guard,  party,  or  other 
duty  after  having  actually  entered  upon  such  duty,  but 
not  until  then  discovered  to  be  drunk,  should  be 
charged  with  violation  of  the  38th  Article  of  War. 

6.  In  preferring  charges  against  an  enlisted  man  who 
has  coupled  with  desertion  a  later  fraudulent  enlistment, 
there  will  be  added  to  the  usual  specification  setting 
forth  the  desertion,  an  additional  one  setting  forth  the 
offense  of  desertion  by  reenlisting  without  a  regular  dis- 
charge from  his  former  regiment,  troop,  battery,  or  com- 
pany. The  specifications  to  the  charges  of  desertion  and 
fraudulent  enlistment  will  set  forth  the  offenses  under 
the  original  name  and  organization,  and  include  the 
other  name,  etc.,  under  an  alias.^ 

7.  Accused  persons  will  not  be  joined  in  the  same 
charge,  nor  tried  on  joint  charges,  unless  for  concert 
of  action  in  an  offense.  To  warrant  the  joining  of 
several  persons  in  the  same  charge,  the  offense  must  be 
such  as  requires  for  its  commission  a  comVjination  and 
must  have  been  committed  in  concert,  in  pursuance  of 
a  common  intent. 

8.  As  to  whether  an  act  which  is  a  civil  crime  is  also 
a  military  offense  no  rule  can  be  laid  down  which  will 
cover  all  cases,  for  the  reason  that  what  may  be  a 
military  offense  under  certain  circumstances  may  lose 

ICir.  76,  W.  D.,  lf<08.     See  forms  for  cli:irgeH,  pages  !»«  aii'l  142,  jtonl. 
5(»(»03 2 


18  CHARGES   AND    SPECIFICATIONS. 

that  character  under  others.  For  instance,  larceny  by 
a  soldier  from  a  civilian  is  not  always  a  military  crime, 
but  it  may  become  such  in  consequence  of  the  particu- 
lar features,  surroundings,  or  locality  of  the  act.  What 
these  may  be  can  not  be  anticipated  with  a  sweeping 
rule,  comiDrehensive  enough  to  provide  for  every  possi- 
ble conjunction  of  circumstances.  Each  case  must  be 
considered  on  its  own  facts.  But  if  the  act  be  com- 
mitted on  a  military  reservation,  or  other  ground  occu- 
pied by  the  army,  or  in  its  neighborhood,  so  as  to  be  in 
the  constructive  presence  of  the  army;  or  if  committed 
while  on  duty,  particularly  if  the  injury  be  to  a  mem- 
ber of  the  community  whom  it  is  the  offender's  duty  to 
protect:  or  if  committed  in  the  presence  of  other  sol- 
diers, or  while  in  uniform;  or  if  the  offender  use  his 
military  position,  or  that  of  another,  for  the  purpose  of 
intimidation  or  other  unlawful  influence  or  object- 
such  facts  would  be  sufficient  to  make  it  prejudicial  to 
military  discipline  within  the  meaning  of  the  62d 
Article  of  War. 

Sec.  II.  The  specification  need  not  possess  the  tech- 
nical nicety  of  an  indictment  at  common  law.  A  bald 
statement  of  facts  is  sufficient,  provided  the  legal 
offense  itself  be  distinctly  and  accurately  described.' 

2.  In  order  that  the  accused  may  be  left  in  no  doubt 
as  to  the  precise  offense  with  which  he  is  charged,  the 
ti7ne  and  j^lftce  of  the  commission  of  the  offense  should 
be  stated  as  accurately  as  possible.  When  any  doubt 
exists  as  to  the  exact  date  and  locality,  it  may  be  stated 
that  the  act  specified  was  committed  "  on  or  about"  a 
certain  time,  or  "at  or  near"  a  given  place.  In  pre- 
paring several  specifications  under  one  charge,  the  time 
and  place  of  the  alleged  offense  should  be  given  in  each. 

Sec.  III.  Many  of  the  Articles  of  War  include  two  or 
more  offenses.  When  a  charge  is  to  be  laid  under  such 
an  article,  the  particular  offense  committed  should  be 
stated.     A  specification  in  an  alternative  form  is  bad 

1  Digest  Opin.  J.  A  G.,  §  695,  and  note. 


CHARGES    AND    SPECIFICATIONS.     '        19 

pleading.  For  example,  it  is  wrong  to  allege  ''selling 
ov  through  neglect  losing,"  in  violation  of  the  17th 
Article  of  War. 

2.  The  prosecution  is  at  liberty  to  charge  an  act 
under  two  or  more  forms,  when  it  is  doubtful  under 
which  it  will  more  properly  be  brought  by  the  testi- 
mony. In  the  military  practice,  the  accused  is  not 
entitled  to  call  upon  the  prosecution  to  elect  under 
which  charge  it  will  proceed  in  such,  or  indeed  in  any, 
case. 

Sec.  IV.  "Before  forwarding  charges  they  will  be 
carefully  investigated  by  the  commanding  officer,  or  an 
officer  designated  by  him,  other  than  the  officer  prefer- 
ring the  charges,  and  in  forwarding  the  charges  the 
name  of  the  officer  making  the  investigation  will  be 
noted  in  the  commanding  officer's  indorsement.  The 
commanding  officer  will  state  in  his  indorsement 
whether  or  not,  in  his  opinion,  the  charges  can  be  sus- 
tained." '  Before  referring  to  summary  courts  charges 
for  which  the  maximum  limit  of  punishment  that  may 
be  awarded  is  greater  than  one  month's  forfeiture  and 
confinement,  commanding  officers  will  cause  the  accused 
to  sign  a  statement  on  the  charge  sheet  as  to  whether 
or  not  he  consents  to  trial  by  summary  court.  A  note 
of  this  statement  in  each  case  will  also  be  entered  on 
the  monthly  report  of  trials  by  such  court. 

2.  Charges  against  an  enlisted  man  forwarded  to  the 
authority  ordering  a  general  court-martial,  or  sub- 
mitted to  a  summary,  garrison,  or  regimental  court, 
must  be  accompanied  by  the  proper  evidence  of  previ- 
ous convictions.-  "General  courts-martial  will  con- 
sider only  such  evidence  of  previous  convictions  as  is 
referred  to  them  by  the  convening  authority."'^ 

3.  Charges  against  an  enlisted  man  forwarded  to  the 
authority  competent  to  order  a  general  court-martial 
for  his  trial  will  also  be  accompanied  by  a  statement  of 

1  Par.  963,A.  K.     -  Id.,  962  aud  964;  see  page  48,  par.  2,  jjos<.     3  /j.^  971. 


'2^  ORGAXIZATION. 

service^  in  accordance  with  the  form  given  on  page  145, 
post.  In  case  of  a  deserter  the  surgeon's  report  required 
by  paragraph  125,  Army  Regulations,  will  also  be  for- 
warded with  the  charges. - 

Sec.  V.  After  charges  have  been  formally  referred  by 
competent  authority  to  a  court-martial  for  trial,  the 
court  is  not  authorized  in  its  discretion  and  upon  its 
own  motion,  to  strike  out  a  charge  or  specification,  or 
to  direct  or  permit  the  judge-advocate  to  drop,  or  with- 
draw, such  charge  or  specification,  or  to  enter  a  nolle 
prosequi  as  to  the  same.  For  such  action  the  authority 
of  the  convening  officer  is  requisite.  Where,  however, 
by  a  special  plea  or  objection,  an  issue  is  made  by  the 
accused  as  to  the  sufficiency  of  any  charge  and  specifica- 
tion, the  court,  without  referring  the  question  to  the 
convening  officer,  is  empowered  to  sustain  the  plea  or 
objection,  and  quash  or  strike  out  the  charge. 

2.  Charges  should  be  signed  by  a  commissioned  offi- 
cer, but  a  contract  surgeon  or  dental  surgeon  may  sign 
charges  against  an  enlisted  man.^ 

ADDITIOXAL    CHARGES. 

1.  «After  the  accused  has  been  arraigned  upon  certain 
charges,  has  pleaded  thereto,  and  the  trial  on  the  same 
has  been  entered  upon,  new  and  additional  charges, 
which  the  accused  has  had  no  notice  to  defend,  can  not 
be  introduced  or  the  accused  required  to  plead  thereto. 
Such  charges  should  be  made  the  subject  of  a  separate 
trial,  upon  which  the  accused  may  be  enabled  properly 
to  exercise  the  right  of  challenge  to  the  members  of  the 
court  and  effectively  to  plead  and  defend. 

ORGAXIZATIOX. 

1 .  The  authority  appointing  a  court-martial  designates 
the  place  for  holding  the  court,  the  hour  of  meeting, 
the  members  of  the  court,  and  a  judge-advocate.^ 

1  See  pas^e  64,  par.  7,  jios/,  ami  par.  902,  A.  K. 

-  For  form,  see  page  145,  post. 

sPar.  1413,  A.  K.  4 Pars.  952  and  953,  A.  R. 


ORGANIZATION.  21 

2.  Courts  will  be  assembled  at  posts  or  stations  where 
trial  or  examination  will  be  attended  with  the  least 
expense.  They  will,  as  far  as  practicable,  hold  their 
sessions  so  as  to  interfere  least  with  ordinary  routine 
duties. 

3.  A  general  court-martial  assembles  at  its  first  ses- 
sion in  accordance  with  the  order  convening  it;  there- 
after, according  to  adjournment.  The  members  wear 
dress  uniform,  or  service  uniform  in  commands  not 
pro\aded  with  dress  uniform,  with  their  sabers;  the 
judge-advocate  and  the  accused  appear  in  the  same 
uniform  as  the  court  without  side  arms.  Military  wit- 
nesses wear  the  same  uniform  as  the  court  with  side 
arms.  The  accused  should  not  be  brought  before  the 
court  in  irons,  unless  there  are  good  reasons  to  believe 
that  he  will  attempt  to  escape  or  to  conduct  himself  in 
a  violent  manner;  but  the  fact  that  a  prisoner  has  been 
tried  in  irons  can  not,  in  any  case,  affect  the  validity  of 
the  proceedings. 

4.  When  the  court  is  ready  to  proceed,  the  members 
take  seats  at  a  table  provided  for  their  use;  the  presi- 
dent sits  at  the  head  of  the  table  and  the  other  members 
at  his  right  and  left  alternately,  according  to  rank. 
The  judge-advocate  sits  at  the  foot  of  the  table  or  at  a 
separate  table;  the  accused  and  his  counsel  at  a  table 
provided  for  them  and  placed  in  a  convenient  position. 
A  witness,  when  testifying,  is  seated  near  the  judge- 
advocate,  and  the  reporter  at  a  table  placed  near  the 
witness'  chair. 

5.  The  order  of  procedure  is  given  in  detail  in  the 
"  form  for  record  of  a  general  court-martial,"  page  144, 
post.  During  the  reading  of  the  order  convening  the 
court  and  the  arraignment,  the  judge-advocate  and  the 
accused  should  stand;  while  the  court  and  the  judge- 
advocate  are  being  sworn,  all  stand;  when  a  reporter,  an 
interpreter,  or  a  witness  is  being  sworn,  he  and  the 
judge-advocate  should  stand;  and  when  the  judge-advo- 
cate, the  accused,  or  his  counsel  addresses  the  court,  he 
should  rise. 


22  THE    MEMBERS. 

6.  The  organization  of  the  court  is  complete  on  the 
swearing  in  of  the  members  and  the  judge-advocate. 

THE  MEMBERS. 

1.  Members  of  a  conrt-martial  will  be  named  in  the 
order  appointing  it,  in  accordance  with  their  rank. 
They  will  sit  according  to  rank  as  announced,  and  will 
' '  behave  with  decency  and  calmness . "  '  A  court-martial 
has  no  power  to  punish  its  members,  but  a  member  is 
liable  for  improper  conduct  as  for  any  other  offense 
against  military  discipline.  Improper  words  used  by  a 
member  should  be  taken  down  in  writing,  and  any  dis- 
orderly conduct  reported  to  the  appointing  authority.'^ 

Reading  of  newspapers  or  other  evidence  of  inatten- 
tion by  members  of  a  court-martial  during  its  sessions 
constitutes  a  violation  of  duty  to  the  prejudice  of  good 
order  and  military  discipline.  It  is  the  duty  of  the 
-president  of  the  court  to  admonish  against  such  inatten- 
tion, and  charges  may  be  preferred  against  a  member 
who  does  not  heed  the  admonition. 

2.  "  Members  of  a  court-martial,  in  giving  their  votes, 
shall  begin  with  the  youngest  in  commission."^  In  all 
deliberations  the  law  secures  the  equality  of  the 
members. 

3.  When  a  member  is  prevented  from  attending  a 
session  of  the  court  he  will  communicate  the  cause  to 
the  judge-advocate,  so  that  the  same  may  be  entered  in 
the  record  of  proceedings.  If  he  fails  to  do  so  it  is  the 
duty  of  the  president  at  the  next  meeting  of  the  court 
to  call  upon  him  for  such  explanation  as  he  may  desire 
to  make. 

4.  A  member  stationed  at  the  place  where  a  court- 
martial  sits  is  liable  to  duty  with  his  command  during 
adjournment  of  the  court  from  day  to  day.* 

1  Par.  952,  A.  R.,  aud  the  87th  A.  W. 

2  Par.  955,  A.  R. 

3  95th  A.  W.  A  tie  vote  on  the  findings  is  a  vote  of  "not  guilty;"  a  tie 
vote  on  a  proposed  sentence  or  on  any  objection  or  motion  is  a  vote  in  the 
negative.  The  sentence  is  not  adopted,  and  the  objection  or  motion  is  not 
sustained.  "iPar.  953,  A.  R. 


THE   JUDGE-ADVOCATE.  23 

THE  PRESIDENT. 

1.  "A  president  of  the  court  will  not  be  announced. 

The  officer  highest  in  rank  present  will  act  as  presi- 
dent."^ Besides  his  duties  and  privileges  as  a  member, 
the  president  is  the  organ  of  the  court  to  maintain 
order  and  conduct  its  business.  He  speaks  and  acts  for 
the  court  in  every  instance  where  a  rule  of  action  has 
been  prescribed  by  law,  regulations,  or  its  own  resolu- 
tion. He  administers  the  oath  to  the  judge-advocate 
and  authenticates  by  his  signature  all  acts,  orders,  and 
proceedings  of  the  court  requiring  it. 

THE  JUDGE- ADVOCATE. 

1.  ."The  judge-advocate  *  *  shall  prosecute  in  the 
name  of  the  United  States,  but  when  the  prisoner  has 
made  his  plea  he  shall  so  far  consider  himself  counsel 
for  the  prisoner  as  to  object  to  any  leading  question  to 
any  of  the  witnesses,  and  to  any  question  to  the  pris- 
oner, the  answer  to  which  might  tend  to  criminate 
himself."' 

2.  Before  the  court  assembles  the  judge-advocate  should 
note  and  report  to  the  convening  authority  any  irregu- 
larity in  the  order  convening  the  court  and  see  that  the 
charges  are  technically  and  correctly  drawn.  He  may 
ordinarily  correct  obvious  mistakes  of  form,  or  slight 
errors  in  name,  dates,  amounts,  etc.,  but  he  should  not, 
without  the  authority  of  the  convening  officer,  make 
substantial  amendments  in  the  allegations,  or — least  of 
all — reject  or  withdraw  a  charge  or  specification,  or  en- 
ter a  nolle  prosequi  as  to  the  same,  or  substitute  a  new 
and  distinct  charge  for  one  transmitted  to  him  for  trial. 

3.  The  judge-advocate  should  acquaint  the  prisoner 
with  the  accusations  against  him,  inform  him  of  his  right 
to  have  counsel, '^  and  to  testify  in  his  own  behalf,  and 
furnish  him  with  a  copy  of  the  charges,  if  desired.  He 
may  ask  a  prisoner  how  he  intends  to  plead;  but,  when 
the  accused  is  an  enlisted  man,  he  should  in  no  case  try 

1  Par.  954,  A.  E.  290th  A.  W.  '^ See  i>a.se  2o, post. 


24  THE   JUDGE-ADVOCATE. 

to  induce  him  to  plead  guilty  or  leave  him  to  infer  that 
if  he  does  so  his  punishment  will  be  lighter.  When  the 
accused  determines  to  plead  guilty  the  judge-advocate 
should  advise  him  of  his  right  to  introduce  evidence  in 
explanation  of  his  offense,  and  should  assist  him  in  secur- 
ing it;  and  if  the  charge  be  desertion,  the  judge-advocate 
should  satisfy  himself  that  the  accused  understands 
that  such  plea  will  be  an  admission  of  his  unauthorized 
absence  with  the  intention  of  not  returning. 

4.  The  judge-advocate  should  also,  before  the  court 
assembles,  obtain  a  suitable  room  for  the  court,  see  that 
it  is  in  order,  procure  the  requisite  stationery,  summon 
necessary  witnesses,'  make  a  preliminary  examination 
of  the  latter,  and  as  far  as  possible  systematize  his  plans 
for  conducting  the  case. 

5.  Diiinng  the  trial  the  judge-advocate  conducts  the 
case  for  the  Government.  He  executes  all  orders  of 
the  court;  reads  the  convening  order  to  the  accused; 
swears  the  members  of  the  court,  the  reporter,  inter- 
preter, and  all  witnesses;  arraigns  the  accused;  exam- 
ines witnesses;  keeps,  or  superintends  the  keeping  of,  a 
complete  and  accurate  record  of  the  proceedings,-  and 
affixes  his  signature  to  each  day's  proceedings.^  In  con- 
junction with  the  president  of  the  court  he  authenticates 
the  record  by  his  signature, ^  and  at  the  end  of  the  trial 
transmits  the  same  to  the  convening  authority.^  When- 
ever, by  reason  of  the  death  or  disability  of  the  judge- 
advocate  occurring  after  the  court  has  decided  on  the 
sentence,  the  record  can  not  be  authenticated  by  his 
signature,  it  must  show  that  it  has  been  formally  ap- 
proved by  the  court  and  must  be  authenticated  by  the 
signature  of  the  president.^ 

6.  While  the  court  is  in  open  session  the  judge-advo- 
cate should  respectfully  call  the  attention  of  the  court 

1  See  page  34,  'poxt. 

2  For  form  for  record,  see  page  146,  poRt. 
spar.  988,  A.  R. 

*  Id.,  990.     The  proceedings  of  all  courts  api)ointe(l  by  the  President  will 
be  sent  direct  to  the  Secretary  of  War.      (Par.  925,  A.  I\.) 
5  Id.,  988. 


COUNSEL.  25 

to  any  illegalities  in  its  action,  and  to  any  irregularities 
in  its  proceedings.  He  should  act  as  legal  adviser  of 
the  court  so  far  as  to  give  his  opinion  upon  any  point 
of  law  arising  during  the  trial,  when  it  is  asked  for  by 
the  court,  but  not  otherwise. 

7.  When  a  court  sits  in  closed  session  the  judge- 
advocate  will  withdraw,  and  when  his  legal  advice  or 
assistance  is  required,  it  will  be  obtained  in  open  court. ^ 

8.  Throughout  the  trial  the  judge-advocate  should  do 
his  utmost  to  present  the  whole  truth  of  the  matter  in 
question.  He  should  oppose  every  attempt  to  suppress 
facts  or  to  torture  them  into  false  shapes,  to  the  end 
that  the  evidence  may  so  exhibit  the  case  that  the  court 
may  render  impartial  justice. 

9.  The  judge-advocate  should  regard  his  duty  toward 
the  accused  as  not  strictly  limited  by  the  90th  Article 
of  War,  and  when  the  latter  is  ignorant  and  without 
counsel  the  judge-advocate  should  take  care  that  he 
does  not  suffer  upon  the  trial  from  any  ignorance  or 
misconception  of  his  legal  rights,  and  has  full  oppor- 
tunity to  interpose  such  pleas  and  make  such  defense 
as  may  best  bring  out  the  facts,  the  merits,  or  the  ex- 
tenuating circumstances  of  his  case. 

10.  Whenever  the  court  adjourns  to  meet  at  the  call 
of  the  president,  the  judge-advocate  will  notify  the 
members  of  the  time  designated  by  the  president  for 
reassembling. 

COUNSEL. 

1.  The  accused  is  not  of  right  entitled  to  counsel,  but 
the  privilege  is  almost  invariably  conceded,  and  if  re- 
fused, such  refusal  may  be  ground  for  the  disapproval 
of  the  proceedings. - 

2.  The  commanding  officer  of  a  post  where  a  general 
court-martial  is  convened  will,  at  the  request  of  any 
prisoner  who  is  to  be  arraigned,  detail  a  suitable  officer 
as  counsel  for  the  defense.     If  there  be  no  such  officer 

1  Par.  956,  A.  R.  2  Digest  Opins.  J.  A.  G.,  §  984. 


26  REPORTER. 

available  for  detail  the  fact  will  be  reported  to  the 
authority  appointing  the  court  for  his  action.^ 

3.  An  officer  detailed  as  counsel  for  a  soldier  before 
a  general  court-martial  should  guard  the  interests  of 
the  accused  by  all  honorable  and  legitimate  means 
known  to  the  law,  so  far  as  they  are  not  inconsistent 
with  military  relations.-  He  should  not  obstruct  the 
proceedings  with  frivolous  or  manifestly  useless  ob- 
jections. 

4.  If  the  judge-advocate  keeps  the  record  in  longhand 
the  counsel  will  be  required  to  reduce  his  questions  and 
arguments  to  writing;  but  if  the  court  has  a  steno- 
graphic reporter  the  counsel  will  be  allowed  to  question 
witnesses  and  address  the  court  orally. 

REPORTER. 

1.  "  The  commanding  officer  will  detail,  when  neces- 
sary, a  suitable  enlisted  man  as  clerk  to  assist  the  judge- 
advocate  of  a  general  court-martial,  or  military  com- 
mission, or  the  recorder  of  a  court  of  inquiry.^ 

2.  "  A  judge-advocate  of  a  general  court-martial  or 
military  commission,  and  a  recorder  of  a  court  of  in- 
quiry, when  appointed  by  a  general  officer  or  a  colonel 
exercising  the  command  of  a  general  officer,  may  employ 
when  authorized  by  the  convening  authority,  a  steno- 
graphic reporter,  who  shall  be  paid  at  the  following  rates 
of  compensation  by  the  Pay  Department  on  vouchers 
certified  to  be  correct  by  the  judge-advocate  or  recorder, 
who  will  forward  a  copy  of  the  same  with  the  record : 

"For  each  case  not  to  exceed  one  dollar  ($1.00)  a,n 
hour  for  time  actually  spent  in  court  during  the  trial  or 
hearing,  except  when  the  court  or  commission  sits  less 
than  three  hours  during  the  first  day,*  when  the  allow- 

1  Par.  970,  A.  K.     This  privilege  of  being  represented  by  counsel  does  not 
apply  to  cases  before  inferior  courts. 
"'Id. 

3/(Z.,  995. 
4SeeCir.  81,  W.  D..  1908. 


REPORTER.  27 

ance  for  such  day  shall  be  three  dollars  ($3.00).  Time 
will  be  reckoned  to  the  nearest  half  of  an  hour. 

"  Fifteen  (15)  cents  for  each  100  words  for  transcrib- 
ing notes  and  making  that  portion  of  the  original  record^ 
which  is  typewritten;  but  no  allowance  shall  be  made 
for  the  first  carbon  copy  of  that  portion  of  the  record 
which  is  typewritten  or  for  original  papers  which  are 
appended  as  exhibits.^ 

"Ten  (10)  cents  for  each  100  words  for  copying 
papers  material  to  the  inquiry,  and  two  (2)  cents  for 
each  100  words  for  each  carbon  copy  of  the  same,  when 
ordered  by  the  court  or  commission  for  its  use. 

"  Two  (2)  cents  for  each  100  words  for  the  second  and 
each  additional  carbon  copy  of  the  record  when  author- 
ized by  the  convening  authority. 

"  Except  for  such  part  of  the  journey  as  may  be  cov- 
ered by  Government  transportation,  mileage  at  the  rate 
authorized  for  a  civilian  witness  not  in  Government 
employ,  and  three  (S3. 00)  dollars  a  day  for  expenses 
when  the  judge-advocate  or  recorder  keeps  him  at  his 
own  expense,  away  from  his  usual  place  of  employment 
for  twenty-four  hours  or  more,  on  public  business  re- 
ferred to  the  court  or  commission,  shall  be  allowed  the 
reporter  for  himself,  and  when  ordered  by  the  court 
or  commission,  for  each  necessary  assistant. 

"The  judge-advocate  or  recorder  shall  require  the 
reporter  to  furnish  the  typewritten  record  of  the  pro- 
ceedings of  each  session  of  the  court  or  commission  with 
one  carbon  copy  of  the  same  not  later  than  twenty-four 
hours  after  the  adjournment  of  that  session.  The  com- 
plete record  to  be  finished,  indexed,  bound,  and  ready 
for  authentication  not  later  than  forty-eight  hours  after 
the  completion  of  its  action  by  the  court  or  commission 
on  the  merits  of  the  case  or  hearing."  ^ 


1  Original  record  includes  exhibits. 

-  The  carbon  copy  is  for  use  of  the  judge-advocate  and  the  court  during  the 
trial,  and,  if  accused  desires,  it  should,  after  being  corrected,  completed 
and  certified  as  a  true  copy,  except  as  to  findings,  sentence,  and  exhibits  not 
copied,  be  furnished  to  him.  When  this  is  done  a  certificate  to  that  effect 
will  accompany  the  record.  If  not  furnished  to  the  accused  it  will  be  trans- 
mitted direct  to  the  Judge- Advocate-General  of  the  Army. 

3  Par.  996,  A.  K.     For  form  for  index,  see  page  lie,  post. 


28       INTERPRETER — CHALLENGE. 

3.  Reporters  are  selected  and  employed  by  the  judge- 
advocate  of  the  court,  and  will  be  paid  by  the  Pay 
Department  on  the  certificate  of  the  judge-advocate.^ 

4.  "No  person  in  the  military  or  civil  service  of  the 
Government  can  lawfully  receive  extra  compensation 
for  clerical  duties  performed  for  a  military  court.  "^ 

INTERPRETER. 

1.  "  Interpreters  to  courts-martial  are  paid  by  the  Pay 
Department  upon  the  certificate  of  the  judge-advocate 
that  they  were  employed  by  order  of  the  court.  They 
will  be  allowed  the  pay  and  allowances  of  civilian  wit- 
nesses."^ 

CHALLENGE. 

1.  "Members  of  a  court-martial  maybe  challenged 
by  a  prisoner,  but  only  for  cause  stated  to  the  court. 
The  court  shall  determine  the  relevancy  and  validity 
thereof,  and  shall  not  receive  a  challenge  to  more  than 
one  member  at  a  time. ' '  *  Under  the  custom  of  the  serv- 
ice the  judge-advocate  may  also  challenge  for  cause. 

2.  A  positive  declaration  by  the  challenged  member 
that  he  is  not  prejudiced  against  the  accused,  nor  inter- 
ested in  the  case,  is  ordinarily  satisfactory  to  the  accused, 
and,  in  the  absence  of  material  evidence  in  support  of 
the  objection,  will  justify  the  court  in  overruling  it.  If, 
however,  the  statement  is  unsatisfactory,  or  the  member 
makes  no  response,  the  accused  may  offer  testimony  in 
support  of  his  objection  or  may  subject  the  challenged 

1  Par.  99G,  A.  R.  For  form  of  voucher  for  payment  of  reporter,  see  page 
184,  post. 

^Id.,  997. 

3J(Z.,  998.  As  to  pay,  etc.,  of  civilian  witness,  see  pai^o  43,  ^jos^  Inter- 
preters are  paid  on  tlie  blank  forms  used  for  civilian  witnesses  not  in  Gov- 
ernment employ. 

4  88th  A.  W.  This  Article  of  War  authorizes  the  exercise  of  the  right  of 
challenge  before  all  courts  except  summary  courts. 


OF    THE 

UNIVERSITY 

OATHSX     cz.    ^^         ^       /^9 

member  to  an  examination  by  interrogatories  in  the 
same  manner  that  a  juror  is  examined  in  criminal  courts. 
If  the  accused  desires  that  the  challenged  member  be 
put  on  his  voii'  dire,  the  judge-advocate  w411  administer 
the  oath  before  the  court  is  sworn. 

3.  Courts  should  be  liberal  in  passing  upon  challenges, 
but  they  will  not  entertain  an  objection  that  is  not  spe- 
cific, nor  one  upon  the  mere  assertion  of  the  accused,  if 
it  is  not  admitted  by  the  challenged  member.  A  chal- 
lenge upon  the  ground,  admitted  or  proven,  that  a 
member  preferred  the  charges  or  is  a  material  witness 
in  support  thereof,  or  that  he  has  investigated  the 
charges  and  expressed  the  opinion  that  they  can  be 
established,  should  be  sustained  by  the  court. 

4.  The  court  of  itself  can  not  excuse  a  member  in  the 
absence  of  a  challenge.  A  member,  not  challenged, 
who  thinks  himself  disqualified,  can  be  relieved  only 
by  application  to  the  convening  authority.  No  member 
who  has  been  absent  during  the  taking  of  evidence  shall 
thereafter  take  part  in  the  trial;  but  this  provision  shall 
not  be  construed  as  invalidating  the  proceedings  of 
courts-martial  if  no  objection  is  made,  and  the  court 
permits  the  member  to  sit,  but  is  to  be  regarded  as  a 
requirement  which  should  always  be  complied  with 
when  practicable.  Especially  should  a  member  who 
has  been  absent  during  an  important  part  of  the  pro- 
ceedings not  be  permitted  to  resume  his  seat. 

5.  The  judge-advocate  is  not  challengeable;  but  in 
case  of  personal  interest  in  the  trial  he  should  apply  to 
the  convening  authority  to  be  relieved. 

OATHS.  1 

Of  Members. — The  judge-advocate  shall  administer 
to  each  member  before  the  court  proceeds  upon  any 

1  Whenever  the  same  court-martial  tries  more  than  one  prisoner  on 
separate  and  distinct  charges,  the  oaths  herein  prescribed  will  be  admin- 
istered anew. 


30  OATHS. 

trial,  the  following  oath,  which  shall  also  be  taken  by- 
all  members  of  regimental  and  garrison  courts-martial: 
"  You,  A  B,  do  swear  that  you  will  well  and  truly  try 
and  detei-mine,  according  to  evidence,  the  matter  now 
before  you,  between  the  United  States  of  America  and 
the  prisoner  to  be  tried,  and  that  you  will  duly  admin- 
ister justice,  without  partiality,  favor,  or  affection, 
according  to  the  provisions  of  the  r^les  and  articles  for 
the  government  of  the  armies  of  the  United  States,  and 
if  any  doubt  should  arise,  not  explained  by  said  articles, 
then  according  to  your  conscience,  the  best  of  your 
understanding,  and  the  custom  of  war  in  like  cases; 
and  you  do  further  swear  that  you  will  not  divulge  the 
sentence  of  the  court  until  it  shall  be  published  by  the 
proper  authority,  except  to  the  judge-advocate;  neither 
will  you  disclose  or  discover  the  vote  or  opinion  of  any 
particular  member  of  the  court-martial,  unless  required 
to  give  evidence  thereof,  as  a  witness,  by  a  court  of 
justice,  in  a  due  course  of  law.     So  help  you  God."  ^ 

2.  Of  the  Judge-Advocate. — When  the  oath  has  been 
administered  to  the  members  of  a  court-martial,  the 
president  of  the  court  shall  administer  to  the  judge- 
advocate,  or  person  officiating  as  such,  an  oath  in  the 
following  form:'- 

"  You,  A  B,  do  swear  that  you  will  not  disclose  or  dis- 
cover the  vote  or  opinion  of  any  particular  member  of 
the  court-martial,  unless  required  to  give  evidence 
thereof,  as  a  witness,  by  a  court  of  justice,  in  due  course 
of  law;  nor  divulge  the  sentence  of  the  court  to  any  but 
the  proper  authority,  until  it  shall  be  duly  disclosed  by 
the  same.     So  help  you  God."  ^ 

3.  Of  Witness. — All  persons  who  give  evidence  before 
a  court-martial  shall  be  examined  on  oath,  or  affirma- 
tion, in  the  following  form: 

"You  swear  (or  affirm)  that  the  evidence  you  shall 
give,  in  the  case  now  in  hearing,  shall  be  the  truth,  the 

1 84th  A.  w. 

2 During  tilt'  administration  of  the  oaths  to  the  court  and  the  judge-advo- 
cate, all  members  of  the  court,  the  judge-advocate,  and  the  accused  stand. 
3  85th  A.  W. 


POSTPONEMENT.  31 

whole  truth,  and  nothing  but  the  truth.     So  help  you 
God."i 

4.  Of  Reporter. — "You  swear  that  you  will  faithfully 
perform  the  duties  of  reporter  to  this  court.  So  help 
you  God." 

5.  Of  Interpreter. — "  You  swear  that  you  will  truly 
interpret  in  the  case  now  in  hearing.  So  help  you 
God." 

G.  Voir  Dire. — "You  swear  that  you  will  true  an- 
swers make  to  questions  touching  your  competency  as 
a  member  of  the  court  (or  witness)  in  this  case.  So 
help  you  God." 

7.  Judge-advocates  of  departments  and  of  courts- 
martial,  and  the  trial  officers  of  summary  courts,  are 
authorized  to  administer  oaths  for  the  purposes  of  mili- 
tary justice,  and  for  other  purposes  of  military  admin- 
istration.- 

8,  "Any  officer  or  clerk  of  any  of  the  departments 
lawfully  detailed  to  investigate  frauds  on,  or  attempts 
to  defraud,  the  Government,  or  any  irregularity  or  mis- 
conduct of  any  officer  or  agent  of  the  United  States,  and 
any  officer  of  the  Army  detailed  to  conduct  an  investi- 
gation, and  the  recorder,  and  if  there  be  none  the  pre- 
siding officer  of  any  military  board  appointed  for  such 
purpose,  shall  have  authority  to  administer  an  oath  to 
any  witness  attending  to  testify  or  depose  in  the  course 
of  such  investigation."  ■' 

POSTPONEMENT. 

1.  If ,  before  the  accused  is  arraigned,  a  postponement 
is  necessary,  application  therefor  should  properly  be 
made  to  the  convening  authority.  The  court  may,  dur- 
ing trial,  "for  reasonable  cause,  grant  a  continuance  to 
either  party,  for  such  time,  and  as  often  as  may  appear 
to  be  just:  Provided,  That  if  the  prisoner  be  in  close 

1  92d  A.  W. 

2  Act  of  July  27,  1892;  see  O.  O.  57,  A.  G.  0.,  1892. 

3 Sec.  183,  K.  S.,  aa  ameuded  by  act  of  March  2,  1901,  p.  lZ2,po8L 


32  ARRAIGNMENT — PLEAS. 

confinement,  the  trial  shall  not  be  delayed  for  a  period 
longer  than  sixty  days."' 

2.  Upon  application  by  the  accused  for  a  postpone- 
ment or  a  continuance  because  of  the  absence  of  a  wit- 
ness, it  should  distinctly  appear,  on  his  oath,  that  the 
witness  is  material,  and  why,  and  that  the  accused  has 
used  due  diligence  to  procure  his  attendance,  and  has 
reasonable  ground  to  believe,  and  does  believe,  that  he 
will  be  able  to  procure  such  attendance  within  a  reason- 
able time  stated. 

3.  Application  for  extended  delay  will,  when  practi- 
cable, be  made  to  the  authority  appointing  the  court. 
When  made  to  the  court,  if  in  the  opinion  of  the  court 
it  is  well  founded,  it  will  be  referred  to  the  convening 
authority  to  decide  whether  the  court  shall  be  adjourned 
or  dissolved. 

ARRAIGIS^MENT. 

1.  The  court  being  organized,  and  both  parties  ready 
to  proceed,  the  judge-advocate  will  read  the  charges 
and  specifications,  separately  and  in  order,  to  the  ac- 
cused, and  ask  him  how  he  pleads  to  each — "guilty,"  or 
"not  guilty."  The  order  pursued,  in  case  of  several 
charges  or  specifications,  will  be  to  arraign  on  the  first, 
second,  etc.,  specifications  to  the  first  charge,  then  on 
the  first  charge,  and  so  on  with  the  rest.-' 

PLEAS. 

1.  Ordinarily  the  plea  of  the  accused  is  "guilty"  or 
"not guilty  "  to  each  charge  and  specification;  or, guilty 
of  a  specification  excepting  certain  words,  and  of  the 
excepted  words  not  guilty;  or,  as  when  charged  with  an 
offense  which  includes  a  lesser  one  of  kindred  degree, 
guilty  to  the  specification  except  certain  words,  substi- 
tuting therefor  certain  others,  and  to  the  charge  not 
guilty,  but  guilty  of  the  lesser  kindred  offense.^ 

1  93d  A.  w. 

2  During  the.  arraigninent  the  judge-advocate  and  the  accused  stand. 

3  See  page  46,  par.  3,  posl. 


•  PLEAS.  33 

2.  A  plea  of  guilty  does  not  necessarily  exclude  evi- 
dence. In  cases  of  discretionary  punishment,^  a  full 
knowledge  of  the  circumstances  attending  the  offense  is 
essential  to  the  court  in  measuring  the  punishment,  and 
to  the  convening  authority  in  acting  on  the  sentence. 
It  is,  therefore,  proper  for  the  court  to  take  evidence 
after  a  plea  of  guilty,  except  when  the  specification  is 
so  descriptive  as  to  disclose  all  the  circumstances  of 
mitigation  or  aggravation. 

3.  In  all  cases  after  a  plea  of  guilty,  the  accused  will 
be  permitted  to  offer  evidence  in  mitigation  of  the 
offense  charged ;  and  if  the  offense  be  desertion,  it 
should  appear  of  record  that  he  understood  his  plea  to 
admit  the  intention  to  abandon  his  enlistment  and  not 
merely  an  unauthorized  absence.^ 

4.  When  testimony  is  heard  after  a  plea  of  ' '  guilty," 
the  witnesses  may  be  cross-examined,  evidence  may  be 
produced  to  rebut  their  testimony,  evidence  as  to  charac- 
ter may  be  offered,  and  the  court  may  be  addressed  in  ex- 
tenuation of  the  offense  or  in  mitigation  of  punishment. 

5.  When  the  accused  pleads  "guilty"  and,  without 
any  evidence  being  introduced,  makes  a  statement  in- 
consistent with  his  plea,  the  statement  and  plea  will  be 
considered  together,  and  if  guilt  is  not  conclusively 
admitted,  the  court  will  direct  the  entry  of  a  plea  of 
"not  guilty,"  and  proceed  to  try  the  case  on  the  general 
issue  thus  made. 

6.  If  the  prisoner,  from  obstinacy  or  deliberate  de- 
sign, stands  mute,  or  answers  foreign  to  the  purpose, 
the  court  will  proceed  to  trial  and  judgment  as  if  the 
prisoner  had  pleaded  "not  guilty."^ 

7.  Instead  of  pleading  to  the  general  issue,  the  ac- 
cused may  interpose  a  special  ple^  either  to  the  jurisdic- 
tion, in  abatement,  or  in  bar  of  trial,*  or  he  may  make 
either  of  these  special  pleas  to  any  specification,  pre- 
senting reasons  why  he  should  not  be  tried  on  it.     The 

1  See  page  47,  imst. 

2G.  O.No.91,  A.G.  0.,1881,audCir.  (;6,W.  D.,1908.  '         sggth  A.  W. 
*  As  to  plea  of  autrefois  ac(/uU  in  a  case  iuvolviug  both  a  civil  and  a  mili- 
tary offense,  see  Digest  Opiu.  J.  A.  G.,  §§  306,  103(3,  and  notes. 
50063 3 


34  ATTENDANCE   OF   WITNESSES. 

burden  of  substantiating  such  pleas  rests  on  the  ac- 
cused. Both  sides  should  be  heard,  and  the  proceed- 
ings under  the  plea  recorded.  If  the  plea  in  bar  of 
trial  be  found  valid,  the  court  will  report  its  decision 
to  the  convening  authority  and  await  further  instruc- 
tions; if,  by  the  special  plea,  an  issue  is  made,  the 
court  is  empowered  to  sustain  or  overrule  the  plea;^ 
when  a  special  plea  is  made  and  overruled,  the  accused 
will  be  required  to  plead  to  the  general  issue. 

8.  A  second  enlistment  in  the  service  of  the  United 
States,  when  the  first  has  not  been  fulfilled,  is  not  void, 
but  voidable  at  the  option  of  the  United  States  only;  so 
that  a  man  who,  whilst  serving  under  such  a  second 
enlistment,  commits  an  offense,  can  not  successfully 
plead  the  fraudulent  character  of  his  second  enlistment 
in  bar  of  trial.  Paragraph  132,  Army  Regulations,  re- 
lates to  soldiers  7iof  charged  with  crime  who  are  dis- 
covered to  be  deserters  from  the  Navy  or  Marine  Corps, 
and  does  not  interpose  any  obstacle  to  trial  by  court- 
martial  for  offenses  committed  while  in  the  military 
service. 

9.  The  statute  of  Umitation  (103d  Article  of  War)  is 
not  prohibitory  as  to  jurisdiction,-  but  is  properly  a 
matter  of  defense,  which,  to  be  effective,  must  be 
pleaded  and  proved,  or,  in  some  express  manner,  taken 
advantage  of  on  the  evidence. 

ATTENDANCE  OF  WITNESSES. 

Sec.  I.  "The  judge-advocate  will  summon  the  neces- 
sary witnesses  for  the  trial,  but  will  not  summon  wit- 
nesses at  the  expense  of  the  Government  without  the 
order  of  the  court  unless  satisfied  that  their  testimony 
is  material  and  necessary."^ 

2.  The  accused  is,  in  general,  entitled  to  have  all  the 
material  witnesses  for  his  defense  summoned;  except 
when  their  testimony  would  be  merely  cumulative,  and 
evidently  add  nothing  to  the  strength  of  his  case.     As 

^See  page  20,  Sec.  V,  ante;  also,  page  155,  uote  2, pod. 
2See  Digest  Opiu.  J.  A.  G.,  §320,  and  note. 

^Par.  957,  A.  It.  All  witnesses  for  both  the  prosecution  uiid  the  defense 
are  summoned  or  subpoenaed  by  the  judge-advocate. 


ATTENDANCE   OF   WITNESSES.  35 

far  as  possible,  he  should  be  allowed  a  full  and  free  de- 
fense, as  the  least  denial  to  him  of  any  proper  facility, 
opportunity,  or  latitude  for  it  may  serve  to  defeat  the 
ends  of  justice. 

Sec.  II.  To  procure  the  attendance  of  witnesses  sta- 
tioned or  residing  ivitJdn  the  State,  Territory,  or  Dis- 
trict in  which  the  court  is  ordered  to  sit,  and  to  compel 
them  to  testify,  etc.,  the  judge-advocate  will  proceed  as 
follows: 

1.  Judge-advocates  of  courts-martial  will,  whenever 
it  is  possible,  send  subpoenas  through  military  channels.^ 
In  case  a  civilian  witness  duly  subpoenaed  before  a  gen- 
eral court-martial  refuses  to  appear  or  qualify  as  a  wit- 
ness, or  to  testify  or  produce  documentary  evidence,  as 
required  by  law,  he  will  at  once  be  tendered  or  paid  by 
the  nearest  paymaster  one  day's  fees  and  mileage  for 
the  journeys  to  and  from  the  court,  and  will  thereupon 
be  again  called  upon  to  comply  with  the  requirements 
of  the  law.  The  fees  and  mileage  of  civilian  witnesses 
residing  beyond  the  limits  of  the  State,  Territory,  or 
District  in  which  the  court-martial  is  held  will  not  be 
paid  in  advance,  as  such  witnesses  can  not  be  punished 
if  they  refuse  to  obey  the  summons. - 

2.  If  the  desired  witness  is  a  civilian,  living  near  the 
post  where  the  court  is  convened,  duplicate  subpoenas" 
will  be  prepared,  one  of  which  will  be  served  upon  the 
witness  by  the  judge-advocate  or  by  any  person  in- 
structed by  him ;  if  the  residence  of  the  witness  wanted 
is  not  near  the  post,  but  still  within  the  State,  etc.,  the 
judge-advocate  will  send  the  duplicate  subpcenas  direct 
to  the  convening  authority,  requesting  service  of  the 
same. 

3.  Service  on  a  civilian  witness  is  made,  under  court- 
martial  practice,  by  a  personal  delivery  of  the  subpoena 
to  the  witness;  and  proof  of  service  by  returning  the 

iPar.  958,  A.  R. 

2 See  act  of  Congress   approved  March  2,  1901,  page  ISljjjos^,  aud  par, 
1001,  A.  K.     See,  also,  page  ^9.,  post,  note  1. 
3  For  forms,  see  pages  172  and  173,  post. 


36  ATTENDANCE    OF    WITNESSES. 

duplicate  original  to  the  judge-advocate,  indorsed  as  ex- 
plained in  the  form  published  on  page  178,  post.  Any 
person  may  serve  the  subpoena,'  bnt  the  service  rmist  be 
personal. 

4.  Should  a  civilian  witness  fail  to  appear  ^  after  due 
and  reasonable  notice,  after  having  been  served  with  a 
subpoena,  the  judge-advocate  has  power  to  issue  the 
like  process  to  compel  him  to  appear  and  testify  which 
courts  of  criminal  jurisdiction  within  the  State,  Ter- 
ritory, or  District  where  such  court  shall  be  ordered  to 
sit  may  lawfully  issue. -^  This  power  also  includes  the 
power  to  execute  such  process  through  an  officer,  who 
shall  be  specially  charged  with  its  execution.-* 

5.  Whenever  it  becomes  necessary  to  enforce  the  at- 
tendance of  a  civilian  witness,  as  provided  in  the  pre- 
ceding paragraph,  the  judge-advocate  will  issue  a 
warrant  of  attachment^  directing  and  delivering  it  for 
execution  to  an  officer  designated  by  the  department 
commander  for  the  purpose.  He  will  also  deliver  to 
this  officer  the  subpoena,  indorsed  with  affidavit  of 
service  (to  be  returned  when  the  warrant  is  executed), 
and  a  certified  copy  of  the  order  appointing  the  court- 
martial. 

6.  In  executing  such  process  it  is  lawful  to  use  only 
such  force  as  may  be  necessary  to  bring  the  witness 
before  the  court.  Whenever  force  is  actually  required, 
the  post  commander  nearest  witness's  residence  will 
furnish  a  military  detail  sufficient  to  execute  the  pro- 
cess."^ 

7.  If,  in  executing  this  legal  process,  the  officer  de- 
tailed for  that  purpose  should  be  served  with  a  writ  of 
habeas  corpus  from  any  United  States  court,  or  by  a 
United  States  judge,  for  the  production  of  the  witness, 

iPar.  957,  A.  K. 

2 Such  witness  may  also   be  prosecuted   under  act  uf  Congress  approved 
Ma'-ch  2,  1901;  see  page  131,  ^wsf. 
3  Sec.  1202,  K.  S. 
412  Opins.  Atty.  Gen.,  r,{)\. 
■>  For  form,  see  page  174,  ^lost. 
'•'Par.  9G0,  A.  U. 


ATTENDANCE   OF   WITNESSES.  37 

the  writ  will  be  promptly  obeyed  and  "the  person 
alleged  to  be  illegally  restrained  of  his  liberty  will  be 
taken  before  the  court  from  which  the  writ  has  issued, 
and  a  return  made  setting  forth  the  reasons  for  his 
restraint.  The  officer  upon  whom  such  a  writ  is  served 
will  at  once  report,  by  telegraph,  the  fact  of  such  service 
direct  to  The  Adjutant-General  of  the  Army  and  to  the 
commanding  general  of  the  department."  ^ 

8.  If ,  however,  the  writ  of  habeas  corpus  is  issued  by 
any  State  court  (or  a  State  judge)  it  will  be  the  officer's 
duty  to  make  respectful  return,  in  writing,  informing 
the  court  that  he  holds  the  person  named  in  the  writ  by 
authority  of  the  United  States  pursuant  to  a  warrant  of 
attachment  issued  under  section  1202  of  the  Revised 
Statutes  of  the  United  States  by  a  judge-advocate  of  a 
lawfully  convened  court-martial,  and  that  the  Supreme 
Court  of  the  United  States  has  decided  that  State  courts 
and  judges  are  without  jurisdiction  in  such  cases. - 

9.  After  having  made  the  above  return,  it  is  the  duty 
of  the  officer  to  obey  the  process  of  the  United  States, 
to  hold  the  prisoner  in  custody  under  it,  and  to  refuse 
obedience  to  the  mandate  or  process  of  any  other  gov- 
ernment. And,  consequently,  it  is  his  duty  not  to  take 
the  prisoner,  nor  suffer  him  to  be  taken,  before  a  State 
judge  or  court  upon  a  writ  of  habeas  corpus  issued 
under  State  authority.^ 

10.  "  Every  person  not  belonging  to  the  Army  of  the 
United  States  who,  being  duly  subpoenaed  to  appear  as 
a  witness  before  a  general  court-martial  of  the  Army, 
willfully  neglects  or  refuses  to  appear,  or  refuses  to 
qualify  as  a  witness  or  to  testify  or  produce  documentary 
evidence  which  such  person  may  have  been  legally  sub- 
poenaed to  produce,  shall  be  deemed  guilty  of  a  misde- 
meanor, for  which  such  person  shall  be  punished  on 
information  in  the  district  court  of  the  United  States; 
and  it  shall  be  the  duty  of  the  United  States  district 

1  Par.  1009,  A.  R.     For  general  form  for  return,  see  page  190,  post. 

2  Pars.  1007  and  1008,  A.  R.     Fur  form  for  return,  see  page  192,  post. 

3  See  cases  cited  in  "  Form  B,"  page  192,  pvat. 


38  ATTENDANCE    OF  WITNESSES. 

attorney,  on  the  certification  of  the  facts  to  him  by  the 
general  court-martial,  to  file  an  information  against 
and  prosecute  the  person  so  offending,  and  the  punish- 
ment of  such  person,  on  conviction,  shall  be  a  fine  of 
not  more  than  five  hundred  dollars  or  imprisonment  not 
to  exceed  six  months,  or  both,  at  the  discretion  of  the 
court:  Provided,  That  this  shall  not  apply  to  persons 
residing  beyond  the  State,  Territory,  or  District  in 
which  such  general  court-martial  is  held,  and  that  the 
fees  of  such  witness,  and  his  mileage  at  the  rates  pro- 
vided for  witnesses  in  the  United  States  district  court 
for  said  State,  Territory,  or  District  shall  be  duly 
paid  or  tendered  said  witness,  such  amounts  to  be  paid 
by  the  Pay  Department  of  the  Army  out  of  the  appro- 
priation for  compensation  of  witnesses:  Provided,  That 
no  witness  shall  be  compelled  to  incriminate  himself  or 
to  answer  any  questions  which  may  tend  to  incriminate 
or  degrade  him."  ^ 

11.  If  the  attendance  of  a  military  witness,  stationed 
at  the  post  where  the  court  is  convened,  is  desired,  and 
a  formal  notification  is  necessary,  a  summons  in  the 
form  set  out  on  page  169, posf,  will  be  transmitted  to  the 
witness  through  the  post  commander.  If  the  military 
witness  is  stationed  at  another  post  the  department 
commander  will  be  requested  to  order  the  witness  to 
attend. 

12.  "Every  person  not  belonging  to  the  Army  of  the 
United  States,-  who,  in  the  Philippine  Islands,  being 
duly  subpoenaed  to  appear  therein  as  a  witness  before  a 
general  court-martial  of  said  Army,  willfully  neglects 
or  refuses  to  appear,  or  refuses  to  qualify  as  a  witness 
or  to  testify  or  produce  documentary  evidence  which 

lAct  of  Congress  approved  March  2,  1901,  sec.  1,  page  131,  jmftt.  If  an 
officer  who  is  charged  with  serving  a  subpo'na  pays  the  necessary  fees  and 
mileage  to  a  witness,  taking  a  receipt  therefor,  he  is  entitled  to  reimburse- 
ment.    (Cir.  38,  A.  G.0.,196l.) 

2  Employees  of  the  civil  government  of  the  Philippine  Islands,  paid  from 
insular  funds  of  the  Islands,  are  held  not  to  be  in  the  employ  of  the  Uuited 
States.     (Dec.  Compt.  Treas.,  Aug.  20,  1902;  Cir.  45,  A.  G.  0.,  1902.) 


ATTENDANCE   OF   WITNESSES.  39 

such  person  may  have  been  legally  subpoenaed  to  pro- 
duce, shall  be  punished  by  a  fine  of  not  more  than  five 
hundred  dollars,  United  States  currency,  or  imprison- 
ment not  to  exceed  six  months,  or  both,  at  the  discretion 
of  the  court,  and  it  shall  be  the  duty  of  the  proper 
fiscal  or  prosecuting  officer,  on  the  certification  of  the 
facts  to  him  by  the  general  court-martial,  to  file  in  the 
proper  court  a  complaint  against  and  prosecute  the  per- 
son so  offending:  Provided,  That  one  dollar  and  fifty 
cents,  United  States  currency,  for  each  day's  attend- 
ance, and  five  cents.  United  States  currency,  per  mile 
for  going  from  his  place  of  residence  to  the  place  of 
trial  or  hearing  and  five  cents  per  mile  for  returning, 
shall  be  duly  tendered  to  said  witness:  Provided  fur- 
ther, That  no  witness  shall  be  compelled  to  incriminate 
himself  or  to  answer  any  question  which  may  tend  to 
incriminate  him."  ^ 

13.  With  the  consent  of  both  parties  the  deposition  of  a 
military  or  civilian  witness  residing  or  stationed  within 
the  State,  Territory,  or  District  in  which  the  court  sits 
may  be  taken  and  read  in  evidence. 

Sec.  III.  To  procure  the  testimony  of  ivitnesses  sta- 
tioned or  residing  without  the  State,  etc.,  the  following 
practice  will  he  observed: 

1.  A  writ  of  attachment  does  not  run  beyond  the 
State,  Territory,  or  District  in  which  the  court-martial 
sits.  The  testimony  of  civilian  witnesses  residing  be- 
yond such  State,  Territory,  or  District  will  ordinarily 
be  taken  by  deposition  under  the  91st  Article  of  War; 
but  this  can  not  be  done  when  it  is  necessary  that  they 
should  be  confronted  with  the  accused.  In  such  cases 
their  testimony  can  only  be  taken  on  their  voluntarily 
appearing  before  the  court. 

The  testimony  of  military  witnesses  stationed  or  re- 
siding beyond"^  the  State,  Territory,  or  District  in  which 
the  court  sits  will  also  ordinarily  be  taken  by  deposition. 

1  Act  of  the  Philippine  Commission  (No.  1130),  dated  April  28,  1904;  see 
also  Cir  45,  A.  G.  0.,  1902. 
-  See  page  175,  uote  2,  post. 


40  ATTENDANCE   OF   WITNESSES. 

2.  The  method  of  procedure  to  obtain  a  deposition  ^ 
is  as  follows: 

The  party,  prosecutor  or  defendant,  desiring  the  depo- 
sition, submits  to  the  court  a  list  of  interrogatories  to 
be  propounded  to  the  absent  witness;  the  opposite  party 
then  prepares  and  submits  a  list  of  cross-interrogatories, 
a  reasonable  time  being  allowed  for  this  purpose;  redi- 
rect and  recross-interrogatories  are  added,  if  desired; 
finally  the  court,  having  assented  to  the  interrogatories 
thus  submitted,  adds  such  as,  in  its  judgment,  may  be 
necessary  to  elucidate  the  whole  of  the  witn^ss's  testi- 
mony. 

The  interrogatories  having  been  accepted  by  the  court, 
the  judge-advocate  will,  if  the  witness  is  a  civilian,  pre- 
pare duplicate  subpoenas"^  requiring  the  witness  to 
appear  in  person,  at  a  time  and  place  to  be  fixed  by  the 
officer,  military  or  civil,  who  is  to  take  the  deposition. 
If  the  name  of  this  officer  is  not  known,  the  space  for  it 
will  be  left  blank. 

The  judge-advocate  will  then  send  the  interrogatories 
and  subpoenas  and  proper  account  for  civilian  witness^ 
to  the  commanding  general  of  the  department  within 
the  territorial  limits  of  which  the  witness  resides,  with 
request  that  the  deposition  be  secured,  the  required  data 
supplied  in  the  account  for  civilian  witness,  and  the 
post-office  address  given,  so  that  the  account  may  be 
certified  by  the  judge-advocate  and  transmitted  to  the 
proper  paymaster  for  payment.  In  the  case  of  an 
officer  or  enlisted  man  serving  at  a  place  excepted  from 
the  jurisdiction  of  a  department  commander,  the  inter- 
rogatories, subpoenas,  and  account  will  be  forwarded  to 
The  Adjutant-General  of  the  Army. 

Depositions  may  also  be  taken  before  the  assembling 
of  the  court-martial,  on  interrogatories  and  cross-inter- 
rogatories or  on  reasonable  notice,  subject  to  exceptions 
when  read  in  court. 

3.  If  the  deposition  of  a  military  witness  is  required, 
subpoenas  will  not  be  inclosed  with  the  interrogatories, 
but  the  officer  before  whom  the  deposition  is  to  be  taken, 

1  For  form,  set;  pa^t'  l"'^',  j»>st.  -  For  form,  see  page  173,  poxt, 

3See  forms  13  C  and  l:i  1!,  I'ay  Department,  pages  178  and  \S2,  j)ost.. 


ATTENDANCE    OF   WITNESSES.  41 

or  the  officer  who  causes  it  to  be  taken,  will  direct  the 
witness  to  appear  at  the  proper  time  and  place. 

4.  Judge-advocates  of  departments  and  of  courts-mar- 
tial,and  the  trial  officers  of  summary  courts,  are  author- 
ized to  administer  oaths  and  take  depositions.  ^  If  none 
of  these  officers  are  available,  any  other  Army  officer 
may  be  designated  to  see  that  the  deposition  is  properly 
taken; 2  or  the  deposition  may  be  referred  to  a  notary 
public,  or  other  civil  officer  empowered  to  administer 
oaths  for  general  purposes  (his  name  and  official  char- 
acter being  inserted  in  the  designation),  with  request 
that  he  will  take  the  deposition  and  return  it  with  his 
certificate  that  it  was  duly  made  and  taken  under  oath. 
In  either  case,  the  oath  must  be  administered  and  the 
jurat  {i.  e. ,  the  certificate  that  the  deposition  was  ' '  sub- 
scribed and  sworn  to  ")  subscribed  by  a  civil  officer  em- 
powered to  administer  oaths  for  general  purposes. 

5.  Persons  before  whom  depositions  of  civilian  wit- 
nesses are  taken  for  use  before  courts-martial  will  be 
paid  the  fees  allowed  by  the  law  of  the  place  where  the 
depositions  are  taken. ^ 

6.  Upon  the  return  of  the  interrogatories  and  deposi- 
tion they  will  be  submitted  to  the  court  by  the  president 
or  judge-advocate.  The  papers  will  then  be  properly 
marked,  appended  to  the  record,  and  referred  to  in  the 
proceedings,  where  all  action  upon  the  subject  neces- 
sary for  the  information  of  the  reviewing  authority 
will  be  recorded. 

7.  Upon  the  receipt  of  the  deposition,  the  judge-advo- 
cate will  also  complete  and  sign  the  ordinary  ' '  account 
for  a  civilian  witness,"  •*  certifying  that  the  witness  duly 
attended  as  a  witness  at  a  certain  time  and  place  and 
duly  gave  his  deposition  before  a  certain  official  named, 
and  then  transmit  the  account  to  the  proper  paymaster 
with  a  copy  of  the  order  convening  the  court. 

1  Sec.  4,  act  of  July  27,  1892;  see  G.  0.  57,  A.  G.  0.,  1892. 

2  An  oflficer  so  designated  will,  before  serving  the  subpoena,  complete  it  if 
necessary  by  inserting  the  name  and  official  designation  of  the  notary  (or 
other  official  having  authority  to  administer  the  oaths),  before  whom  it  is 
to  be  taken  and  the  date  on  which  and  place  where  it  is  proposed  to  take  it. 
When  the  deposition  has  been  duly  taken,  he  will  certify  to  this  fact  and 
transmit  it  direct  to  the  president  of  the  court. 

3Cir.  12,  A.  G.  0.,  1901. 

*  For  foi-ms,  see  pages  178  and  182,  post. 


42  ATTENDANCE   OF   WITNESSES. 

8.  In  capital  cases  (i.  e.,  those  in  which  the  offense  is 
punishable  by  death )i  or  in  cases  where  the  judge- 
advocate  can  certify  "  that  the  interests  of  justice  de- 
mand that  the  witness  shall  testify  in  the  presence  of 
the  court,"  the  regular  subpoenas  will  be  made  out  by 
the  judge-advocate,  certified  to  as  above,  if  necessary, 
and  transmitted  to  the  department  commander  of  the 
department  where  the  court  is  convened,  with  a  request 
that  they  be  duly  served  on  the  witness,  if  a  civilian. 
If  the  witness  is  in  the  military  service  the  department 
commander  will  be  requested  to  order  him,  or  cause 
him  to  be  ordered,  to  attend  before  the  court. 

9.  "An  officer  or  enlisted  man  who  receives  a  summons 
or  subpoena  to  attend  as  a  witness  before  any  military 
court,  board,  civil  court,  or  other  competent  tribunal, 
which  is  sitting  beyond  the  limits  of  the  department 
where  he  is  serving,  will,  before  starting  to  obey  the 
same,  forward  it  through  the  proper  channel  to  his 
department  commander,  that  necessary  orders,  or  au- 
thority to  obey  such  process,  may  be  given.  In  urgent 
cases,  or  when  the  public  interest  would  be  liable  to 
suffer  by  delay,  a  post  commander  may  authorize  im- 
mediate departure,  reporting  his  action  and  the  reasons 
therefor  to  the  department  commander."  ^ 

10.  "  Officers  and  enlisted  men  reporting  as  witnesses 
before  a  civil  court  should  receive  from  the  civil 
authorities  the  necessary  expenses  incurred  in  travel 
and  attendance;  neither  mileage  nor  travel  allowances 
will  be  paid  in  such  cases  by  the  War  Department. 
If,  however,  it  is  absolutely  necessary  to  furnish  them 
transportation  in  kind  to  enable  them .  to  appear,  as 
witnesses  for  the  Government,  before  a  civil  court 
of  the  United  States,  an  account  of  such  expenditure, 
together  with  the  evidence  that  they  were  properly  sub- 
poenaed and  did  attend  the  court,  will  be  forwarded  to 
the  War  Department  for  presentation  to  the  Department 
of  Justice.  Officers  providing  such  transportation  will 
notify  the  court,  or  the  marshal  thereof,  that  it  was  fur- 
nished to  enable  the  witnesses  to  perform  the  requisite 
journeys  in  obedience  to  the  summons.""' 

1  In  time  of  peace  desertiou  is  not  a  capital  offense. 

2  Par.  959,  A.  K.  ■ild.,lb. 


FEES   OF   WITNESSES.  43 

FEES  OF  AVITNESSES.i 

1.  A  civilian  witnesn  before  a  court-martial  is  entitled, 
upon  his  discharge,  to  receive  from  the  judge-advocate- 
a  certificate,  setting  forth  the  fact  of  his  having  been 
summoned  as  a  witness  in  the  case,  and  the  number  of 
days  of  his  attendance  in  that  capacity  before  the  court. 
To  entitle  a  witness  to  the  payment  of  fees,  it  is  not 
essential  that  he  should  produce  a  formal  subpoena,  ad- 
dressed to  and  complied  with  by  him,  or  that  he  should 
have  been  formally  summoned  in  the  case.  A  strict 
observance,  however,  of  section  I,  page  34,  ante,  would 
require  the  issue  of  formal  subpoenas  to  witnesses  on 
both  sides,  and  it  is  the  better  practice  for  the  judge- 
advocate  to  cause  such  to  be  served  in  each  instance.^ 

2.  "  Civilians  in  the  employ  of  the  Government  when 
traveling  upon  summons  as  witnesses  before  military 
courts  are  entitled  to  transportation  in  kind  from  their 
place  of  residence  to  the  place  where  the  court  is  in 
session  and  return.  If  no  transportation  be  furnished, 
they  are  entitled  to  reimbursement  of  the  cost  of  travel 
actually  performed  by  the  shortest  usually  traveled 
route,  including  transfers  to  and  from  railway  stations, 
at  rates  not  exceeding  50  cents  for  each  transfer,  and 
the  cost  of  a  double  berth  in  a  sleeping  car  or  steamer 
when  an  extra  charge  is  made  therefor.  They  are  also 
entitled  to  reimbursement  of  the  actual  cost  of  meals 
and  rooms  at  a  rate  not  exceeding  $3  per  day  for  each 
day  actually  and  unavoidably  consumed  in  travel  or  in 
attendance  upon  the  court  under  the  order  or  summons. 
No  allowance  will  be  made  to  them  when  attendance 
upon  court  does  not  require  them  to  leave  their  sta- 
tions."^ 

1  When  the  employment  of  experts  is  necessary  in  a  trial  by  court-martial, 
the  judge-advocate  will  apply  to  the  Secretary  of  War  for  authority  to  em- 
ploy them  and  for  a  decision  as  to  the  compensation  to  be  paid  them. 

2  Or  the  summary  court  officer  if  the  witness  be  before  a  summary  court. 

3  A  civilian  witness  must  be  duly  subpoenaed  and  tendered  fees  under  the 
act  of  Congress  approved  March  2,  1901,  in  order  to  maintain  the  prosecu- 
tion authorized  by  that  act.    See  page  37,  par.  10,  ante. 

■iPar.  yyy,  a.  k. 


44  FEES    OF    WITNESSES. 

'i.  "A  fnvilian,  not  in  Govfirnmerit  fimx>loy,  duly  Hum- 
TMoriod  to  Hppoar  aH  a  witnosH  y>oforo  a  military  court  or 
at  a  i>laco  whoro  liis  dojiosition  in  \a>  >>o  taken  for  uhc 
\><ii'or(i  Huch  court,  will  receive  $1 .50  for  each  day  of  IiIh 
actual  atU^ndance  before  Huch  court  or  for  the  i^urpose 
of  haviij/^  hiH  dfjpoHition  taken,  and  5  centn  a  mile  for 
^fjin^  from  hiH  i)laceof  renidenr^e  to  the  jAaceof  trial  or 
of  the  takin;^  of  hiH  deiJOHition,  and  o  centH  a  mile  for 
returnin;^,  except  a.s  followH:' 

"fa)  In  Porto  Kico  and  Cuba,  he  will  receive  $1.50  a 
day  while  in  attendance  as  above  ntaUid,  and  fifteen 
centH  for  each  mile  neccHHarily  traveled  over  Htage  line 
or  by  private  conveyance,  and  10  cents  for  each  mile 
over  any  railway  or  HteamHhij)  line. 

"(b)  in  Alaska,  (;ast  of  the  one  hundred  and  forty-firHt 
degree  of  west  longitude,  he  will  receive  9^2  a  day  whil*; 
in  attendanf;e  aH  above  Htated,  and  10  cents  a  mile,  and 
went  of  Haid  d<;gree  .84  a  day  and  15  cents  a  mile. 

"(c)  hi  the  States  of  Wyoming,  Montana,  Washington, 
Oregon,  (Jalifornia,  Nevada,  Idaho,  (Colorado, and  Utah, 
and  in  tin;  Territories  of  New  Mexico  and  Arizona,  he 
will  re<-eive  .$'}  a  day  for  the  time  of  actual  attendanr^e 
an  above  stated,  and  for  the  time  necessarily  occux^ed 
in  going  to  and  returning  frrjm  the  same,  and  15  cents 
for  each  mile  necessarily  traveled  over  any  stage  line  or 
by  private  conveyance,  and  5  cents  for  each  mile  by  any 
railway  or  stearnshij)."^ 

4.  "The  charges  for  return  joumeysof  witnesses  will 
bf}  made  upon  the  basis  of  thfj  actual  charges  allowed 
for  travel  to  thfj  court,  and  the  entire  account  thus 
cf>mplet<;d  will  be  paid  upondiscliarge  from  attendance, 
without  waiting  for  completion  of  return  travel."'* 

5.  "The  items  of  exi)enditure  authorized  in  x^^ra- 
grai)hs  'M)  and  1000  (Army  Regulations)  will  be  set 
forth  in  detail  and  madf;  a  i)art  of  eac^h  voucher  for 
nsimbursement.  No  other  items  will  bo  allowed.  The 
(certificate  of  the  judge -advocate  will  bo  evidence  of  th<j 
fac,t  and  x>e'riod  of  attendancf;  and  will  be  made  upon  the 
voucher. ' '  *   The  correctness  of  the  items  as  Uj  civilians 

I  Th'tH<!  riiU-M  apply  t<.  th*;  I'hilippifi<;   fHlanrlH.     H<-o  CIr.  4r,  A.  0,  O.,  HK)2. 

'^Vnv.  UJOO,  a.  It.  A  clviliafi  not  in  (i(i\uruini:ut  «anpl(>y,  wlicri  fiirnlMh<-<l 
»,tatiM|iortatiori  on  InitiMpoi  t  or  otlior  (;oviTnni<:nt  con  vriytinc*;,  in  •■nfillcd  to 
rn.\\2  \>iv  v.ftd  of  r,  rcntn  per  tnil<^  f.Minal  to  '2.Kr.7  v.i-utM  per  mile).  (<'onip 
I>i-<.,  AiiK.  '^",  \:)iri,  j.iil.lihiicd  in  CAr.  i',,  A.  C.  O.,  I!)02.) 

■Vnr.  1002,  A.  II.  •»/'/.,  \W-''. 


KXAMINAIION    Oir    W  I'I'N  KSSMS.  45 

in  Govcirniiuait  employ  will  bo  uttcfstcMl  by  1.1m  afliduvit 
of  tho  wiiiicas,  to  bo  luudo  vvlion  ])nicticablo  Ixdonj  Uh) 
judge-advoc-Jito.' 

7.  " Comix iTirtatioTi  lo  (nviliaiis  in  or  oiil.  of  (Jovoru- 
mentmiiploy  for  attondaiico  upon  (-ivil  coiirtH  is  ])aya,bln 
by  tlio  civil  aiil,lioriti«vs. "  ' 

H.  Tbo  f(!(ia  of  civilian  witiUiSScH,  and  t,h((  milcaKo  of 
wiincHsoH  and  foes  of  civil  of(i(U)rs  taking'  dcpo.sitions, 
will  b(!  paid  by  tbo  Pay  Dcparlmont. 

EXAMINATION  <>!'  W  ITN  i;ssi<:s. 

1.  Witnesses  are  usually  cxaniincd  <i fuirt  from  cacli 
other,  no  witness  bcinj^  allowed  to  b»^  ])resent  during  the 
examination  of  anotlun-  who  is  callinl  befoi-(!  him.  lint 
this  rnlo  is  not  inllexible;  it  is  in  modern  practici?  snb- 
j((ct  to  the  discri^tion  of  the  court,  nor  is  it  (iver  so  rig 
idly  observed  as  to  (exclude  th<^  tcistimony  of  a  pisrson  who 
has  beciii  i)res(ait  at  tlm  examination  of  other  witnessc^s. 

2.  Courts-martial  follow  in  gcsnc^ral,  so  far  as  apposite, 
the  common-law  rules  of  evidiiuco-'  as  obsiTVcid  by  tin* 
Unitiid  Stat<!S  courts  in  criminal  cas(is,  but  they  are  not 
re(iuir(ul  by  statute  to  do  so,  and  a  ccirtain  latitude  in 
the  introduction  of  (evidence  and  the  examination  of 
witn(!sses,  l)y  an  avoidance  of  tcu-hnical  and  restrictive 
rules,  is  permissible  when  it  is  in  the  interest  of  the 
administration  of  military  justice;,  but  no  witness  shall 
be  comixdled  to  incriminate  himscilf  or  to  answer  any 
(pieistion  which  may  tend  to  incriminate  or  degrade  him. ' 
The  ac(;used  at  his  own  reciuest,  but  not  otlK^rwisi!,  is 
comi)et(mt  to  testify.  His  failure  to  mak(5  such  a  r<'- 
<iu<!st  shall  not  cnnite  any  presumption  against  him.'^ 

U.  While  the  i)rop(!r  and  usual  order  and  scMjuenete  t)f 
examination  of  witnesses  is  outlined  in  the  "  form  for 
rcicord  of  a  Gemiral  ('ourt-Martial,"  page  11(5,  j)ost,  the 

1  I'm.  1()(«,  A.  K.  -/</.,  1001. 

•'Copii's  (if  iiii.v  iccor'clH  or  piijicin  in  IIki  War  l)i'|iai  liiiciit  ur  iiiiy  (if  iln 
ItiircaiiN,  (I  I'  III  I  he  licu(l(|iiiii'lci'H  (if  ill!  a  liny,  i'<ii'|ih,  (li\  isidii,  (ir  lii'i);a(l(',  or  (if 
a  t<*n'it()i'ial  iliviMion  (ir  (li'|iarliii(wit,,  if  aiitli('iili(  iitcd  \i\  tin-  iiniiicNMitil  Mlain|i 
(.f  Mi«  liiiicau  or  (.lllco  of  tint  War  l)(|.arliiH-nl,  .ir  of  U.clicadiiuni  Iciw  has  in^ 
ciiMfoil.v  of  tlicoriuiiialH  (»■.;/.,"  Tin'  Adjnlanl -(JciiciMi'hOllicc,  Ollicial  ( '(i|i.v  "), 
may  hit  ailinitlol  in  cviilcnco  (-(inally  snIIIi  tint  (iiJKiiials  llicroof  hcfoi c' aii> 
military  coiiif,  (-oinini.SHion  or  hoani,  or  in  any  inliniiiiMlrali  vc  tnaltii  iiinici 
Mitt  War  Dciiartim-nl.  ((J.  ).  I'.m.  A.  ('..  O,  MtOH.)  Am  Io  (liH|.oHili(in  <<< 
oriKitials  loaned  for  nut-,  hcc  (i.  O.  :<2,  VV.  I).,  Ili0:i. 

'.\(l  (if  <'iin;4lCHH  a|ililcivcd  Rlai(h  2,  I'Jdl ,  hcc.  I,  pane  \:\\,i„,hI.  Sec  alM» 
Cir.  II,  \V.  !>.,  I'.KW.  "iJO  l.  S.  SdilM..  :{0. 


46  FINDINGS. 

court  may,  in  the  interest  of  truth  and  justice,  call  or 
recall  witnesses,  or  permit  their  recall  at  any  stage  of 
the  proceedings;  it  may  permit  material  testimony  to 
be  introduced  by  either  party  quite  out  of  its  regular 
order  and  place,  or  permit  a  case  once  closed  by  either 
or  both  sides  to  be  reopened  for  the  introduction  of 
testimony  previously  omitted,  if  convinced  that  such 
testimony  is  so  material  that  its  omission  would  leave 
the  investigation  incomplete.  In  all  such  cases  both 
])arties  must  be  present,  and  any  testimony  thus  received 
would  be  subject  to  cross-examination  and  rebuttal  by 
the  party  to  whom  it  may  be  adverse. 

4.  Affidavits  taken  ex  parte  and  not  as  depositions 
under  the  91st  Article  of  War  are  in  no  case  admissible 
as  evidence  unless  expressly  consented  to  by  the  accused 
with  full  knowledge  of  his  rights. 

5.  The  accused,  in  addition  to  his  own  testimony,  or 
where  he  has  not  testified,  may  make  a  verbal  or  written 
statement  as  to  the  case.  The  statement  should  not  be 
sworn  to,  and  if  sworn  to  should  not  be  received  as  evi- 
dence by  the  court. 

FINDINGS. 

1.  The  findings  of  the  court  will  be  governed  by  the 
evidence  considered  in  connection  with  the  pleas.  The 
finding  upon  the  charge  should  be  consistent  with  that 
upon  the  specification. 

2.  The  accused  may  be  found  guilty  of  parts  of  the  speci  - 
fication ,  not  guilty  of  the  remainder ,  and  then ,  if  the  speci- 
fication still  supports  the  charge,  guilty  of  the  charge. 

3.  If  the  evidence  proves  the  commission  of  an  offense 
less  in  degree  than  that  specified,  yet  kindred  to  it,  the 
court  may  except  words  of  the  specification,  substitute 
others  instead,  pronounce  the  guilt  and  innocence  of  the 
substituted  and  excepted  words,  respectively,  and  then 
find  the  accused  not  guilty  of  the  charge  but  guilty  of 
the  lesser  kindred  offense.  Of  this  form  of  verdict  the 
most  familiar  is  the  finding  of  guilty  of  absence  with- 
out leave  under  a  charge  of  desertion.  In  such  a  case, 
in  its  finding  of  guilty  upon  the  specification,  the  court 
should  in  terms  except  the  words  "  did  desert, "  and  "  in 
desertion,"  and  substitute  therefor,  respectively,  the 
words  "did  absent  himself  without  leave  from,"  and 


PREVIOUS    CONVICTIONS. 


47 


"without  leave."  The  finding  npon  the  charge  should 
regularly  be  "not  guilty,  but  guilty  of  absence  without 
leave,  in  violation  of  the  32d  Article  of  War." ' 

4.  Another  legal  and  now  common  form  of  finding  is 
where  an  accused  is  charged  with  a  specific  offense, 
made  punishable  by  an  Article  of  War,  other  than  the 
62d,  and  the  court  is  of  the  opinion  that,  while  the 
material  allegations  in  the  specification  are  proved,  they 
do  not  fully  sustain  the  charge  as  laid,  but  do  clearly 
establish  a  breach  of  military  discipline;  in  this  case  the 
accused  may  properly  be  found  guilty  of  the  specifica- 
tion, and  not  guilty  of  the  charge,  but  guilty  of  "  con- 
duct to  the  prejudice  of  good  order  and  militar 
discipluie.'"  It  should  be  remembered,  however,  that 
the  court  can  not  in  its  finding  legally  substitute  the  62d 
Article  of  War  for  any  other,  unless  the  proof  fails  to 
substantiate  the  specification  under  the  original  charge. 
The  reverse  of  this  form  of  finding  has  never  been  sanc- 
tioned. Thus  where  a  charge  is  laid  under  the  general 
article,  a  finding  under  any  other  article,  or,  where  a 
charge  is  laid  under  a  specific  article,  a  finding  under 
any  other  specific  article,  would  be  illegal. 

5.  In  a  case  .of  virtual  acquittal,  to  use  the  term 
"guilty  "  is  improper;  the  correct  expression  is,  "find 
the  facts  as  charged,  but  attach  no  criminality  thereto." 
"Guilty"  should  be  employed  only  when  the  accused 
has  been  convicted  of  a  crime  deserving  punishment. 


PREVIOUS    COJfVICTIONS.2 


1.  Whenever  a  soldier  is  convicted  of  an  offense  for 
which  a  discretionary  punishment  is  authorized,  the 

1  It  i§  beyond  the  power  of  a  reviewing  officer  to  change  a  finding  by  his 
own  action.  Thus  where,  in  a  case  of  desertion,  the  reviewing  authority 
approved  "so  much  only  of  the  finding  of  guilty  of  desertion  as  convicted 
the  accused  of  absence  without  leave,"  it  was  held  that  he  thus  substituted 
a  finding  of  his  owu  for  that  of  the  court,  and  that  his  action  was  unau- 
thorized. 

2 By  "previous  conviction"  is  meant  a  conviction  where  the  sentence 
has  been  approved  by  competent  authority.  This  refers  to  all  trials  except 
where  the  only  officer  present  sits  as  a  summary  court,  when  no  approval 
of  the  sentence  is  required  by  law. 


48  PREVIOUS    CONVICTIONS. 

court  will  receive  evidence  of  previous  convictions,  If 
there  be  any;  sucli  evidence  being  limited,  except  as 
provided  in  sec.  5,  page  69,  post,  to  previous  convictions 
by  courts-martial  ^  of  an  offense  or  offenses  within  one 
year  preceding  the  date  of  any  offense  charged  and  dur- 
ing the  current  enlistment.  General,  regimental,  and 
garrison  courts-martial  will,  after  a  finding  of  guilty, 
be  opened  for  the  purpose  of  ascertaining  whether  there 
is  such  evidence  and,  if  so,  of  receiving  it."^  These  courts 
will  consider  only  such  evidence  of  previous  convictions 
as  is  referred  to  them  by  the  convening  authority. 

2.  Previous  convictions  by  courts-martial  must  be 
proved  by  the  records  of  previous  trials  and  convictions, 
or  by  duly  authenticated  copies  of  such  records,  or  by 
duly  authenticated  copies  of  the  orders  promulgating 
such  trials.^  The  usual  evidence  of  previous  convictions 
by  summary  court  is  the  copy  of  a  summary  court 
record  furnished  to  company  and  other  commanders,  as 
required  by  paragraph  965,  Army  Regulations,  or  one 
furnished  for  the  purpose  and-  certified  to  be  a  true 
copy  by  the  commanding  oflS.cer  or  adjutant  (at  the 
headquarters  where  the  original  record  of  the  summary 
court  which  tried  the  case  is  kept).  When  the  proof 
produced  is  the  copy  furnished  to  the  company  or  other 
commander,  it  will  be  returned  to  him  and  a  copy  of  it 
attached  to  the  record.'* 

3.  The  previous  convictions  are  not  limited  to  those 
for  offenses  similar  to  the  one  for  which  the  accused  is 
on  trial.  The  object  is  "  to  see  if  the  prisoner  is  an  old 
offender,  and  therefore  less  entitled  to  leniency  than  if 
on  trial  for  his  first  offense.'"  This  information  might 
not  be  fully  obtained  if  evidence  of  previous  convictions 
of  similar  offenses  only  were  laid  before  the  court.  It 
has  no  bearing  upon  the  question  of  guilt  of  the  par- 
ticular charge  on  trial,  but  only  upon  the  amount  and 

iThe  introduction  of  evidence  of  convictions  by  civil  courts  is  not 
iiiitliorized. 

-  Executive  order  of  Nov.  25,  1908,  pai^e  58,  Art.  1  IT,  sec.  2,  post. 

3  /(/.,  page  58,  Art.  Ill,  sec   I,  post. 

•*Par.  971,  A.  li.,  iiml  "Instructions"  un  Summary  Court  IJecord,  jmge 
160,  i)ost. 


PUNISHMENT.  49 

kind  of  punishment  to  be  awarded,  and  to  this  end  it  is 
proper  that  all  previous  convictions  should  be  known. 

PUXISIIMENT. 

1.  Punishment,  under  the  Articles  of  War,  is  either 
fixed  or  is  left  to  the  discretion  of  a  court-martial.  If 
the  punishment  is  prescribed  in  the  article  violated,  any 
other  punishment  than  that  prescribed  is  illegal.  Before 
pronouncing  sentence,  the  court  should,  therefore,  in 
case  of  any  uncertainty,  examine  the  article  violated  to 
see  what  punishment  may  be  legally  awarded,  and  in 
awarding  punishment  it  should  be  remembered  that 
the  proper  amount  of  punishment  is  the  least  by  which 
discipline  can  be  efficiently  maintained. . 

2.  For  officers,  the  legal  punishments  by  courts- 
martial,  depending  on  the  nature  of  the  offense,  are 
death,  dismissal,  suspension  from  rank,  command,  or 
duty,  with  or  without  loss  of  pay  or  part  of  pay,  loss  of 
rank,  imprisonment,  fine  or  forfeiture  of  pay,  repri- 
mand, and  confinement  to  limits  of  post  or  reservation. 

3.  For  soldiers,  the  legal  punishments,  depending  on 
the  character  of  the  offense  and  the  jurisdiction  of  the 
court,  are,  death,  confinement,^  confinement  on  bread- 
and- water  diet,  solitary  confinement,  hard  labor,  ball 
and  chain,  forfeiture  of  pay  and  allowances,  dishonor- 
able discharge  from  service,-  for  first-class  privates  re- 
duction to  second-class  privates,  and  reprimand:  for 
noncommissioned  officers,  reduction  to  the  ranks  also,^ 
and  for  '"candidates  for  promotion,""  deprivation  of  all 
rights  and  privileges  arising  from  a  certificate  of 
eligibility.^ 

4.  "No  person  in  the  military  service  shall  be  pun- 
ished by  flogging,  or  by  branding,  marking,  or  tattooing 
on  the  body."'^ 

1  Confinement  without  hard  labor  should  never  be  imposed. 

2  A  dishonorable  discharge  is  an  entire  expulsion  from  the  Army  and 
covers  all  unexpired  enlistments. 

3  "  Post  noncommissioned  staff  oflficers  and  hospital  sergeants  (1st  class), 
though  liable  to  discharge  for  inefficienc\'  or  misconduct,  will  not  be  re- 
duced."   (Pars.  102  and  1426,  A.  R.) 

4  Act  of  July  30,  1892;  see  G.  0.  79,  A.  G.  0.,  1892. 
6  98th  A.  W. 

6096? 1 


50  PUNISHMENT. 

5.  Military  prisoners  will  not  be  punished  by  being 
required  to  carry  a  heavy  log.  Some  other  punishment 
can  be  found  equally  effective  and  not  open  to  the 
objections  urged  against  this  method. 

6.  Punishment  by  ball  and  chain  will  be  imposed  only 
in  extreme  cases. ^ 

7.  "Sentences  imposing  tours  of  guard  duty  are  for- 
bidden.'"- 

8.  Solitary  confinement,  or  confinement  on  bread-and- 
water  diet,  shall  not  exceed  fourteen  days  at  a  time,  nor 
be  again  enforced  until  a  period  of  fourteen  days  has 
elapsed.  Nor  shall  such  confinement  exceed  eighty- four 
days  in  any  one  year.-^ 

9.  A  court-martial  can  direct  a  forfeiture  only  in  favor 
of  the  United  States,  and  can  not  assign  the  pay  of  a 
soldier  to  any  other  person;  nor  can  a  soldier  be  required 
to  receipt  for  money  paid  without  his  consent. 

10.  If  a  soldier  be  brought  to  trial  for  absence  without 
leave  and  convicted,  or  for  desertion  and  is  convicted 
of  absence  without  leave  only,  the  soldier  will  be 
charged  with  the  expense  of  transportation  of  himself 
and  guard  to  his  proper  station.  It  is  not  necessary  for 
the  court  to  include  this  charge  in  its  sentence.  The 
company  commander  will  make  the  charge  without  the 
action  of  the  court. ^ 

11.  "If  a  soldier  be  brought  to  trial  under  a  charge 
of  desertion  and  acquitted,  or  convicted  of  absence 
without  leave  only,  any  amount  paid  as  a  reward  for 
his  arrest  will  not  be  stopped  against  his  pay  unless,  in 
case  of  conviction  of  absence  without  leave,  the  sen- 
tence of  the  court  shall  so  direct.  The  sentence  in  such 
case  should  direct  the  charge  to  take  the  form  of  a  stop- 
page, not  a  forfeiture,  thus  allowing  the  amounts  to  be 
credited  as  a  reimbursement."  ^ 

1  See  page  70,  par.  3,  post.  3  gee  page  60,  post. 

'-'  Par.  973,  A.  R.  i  Par.  126,  A.  E. 

5  Par.  127,  A.  R.  This  paragraph  is  not  affected  by  tlie  order  of  tlie  Presi- 
dent prescribing  the  limit  of  punishment.     See  page  53,  post,  note. 


LIMITS    OF    PUNISHMENT.  51 

12.  "No  person  in  the  military  service  shall,  under 
the  sentence  of  a  court-martial,  be  punished  by  confine- 
ment in  a  penitentiary,  unless  the  offense  of  which  he 
may  be  convicted  would,  by  some  statute  of  the  United 
States,  or  by  some  statute  of  the  State,  Territory,  or  Dis- 
trict in  which  such  offense  may  be  committed,  or  by 
the  common  law,  as  the  same  exists  in  such  State, 
Territory,  or  District,  subject  such  convict  to  such 
punishment."  ^ 

13.  The  9Tth  Article  of  War  limits  the  discretion  of 
the  court  only  as  "to  imprisonment  in  the  peniten- 
tiary, and  it  has  been  nowhere  provided  that  the  pun- 
ishment may  not  in  other  respects  be  greater  than  the 
civil  courts  could  inflict."-  Notwithstanding  this,  a 
court-martial  should  properly  consult  the  statute  gov- 
erning the  civil  courts,  in  order  to  determine  a  reason- 
able measure  of  punishment  for  the  offense. 

14.  The  most  common  offenses  punishable  by  confine- 
ment in  a  penitentiary  are  those  mentioned  in  Article 
60,  and  robbery,  grand  larceny,  embezzlement,  forgery, 
burglary,  arson,  mayhem,  manslaughter,  assault  with 
intent  to  kill,  rape,  or  assault  with  intent  to  commit 
rape.  Any  of  these  offenses,  when  committed  to  the 
prejudice  of  good  order  and  military  discipline,  either 
in  time  of  peace  or  war,  are  punishable  as  stated. 


MAXIMUM   LIMITS   OF  PUXISHMENT.^ 

The  act  of  September  27, 1890,  provides:  "  That  when- 
ever by  any  of  the  Articles  of  War  for  the  government 
of  the  Army  the  punishment  on  conviction  of  any  mili- 


1  97th  A.  W.    The  Philippine  Islands  are  construed  to  be  a  Territory  within 
the  meaning  of  the  Articles  of  War. 
i^  Ex  parte  Mason,  105  U.  S.,  696.     See  G.  0.  61,  A.  G.  0.,  1882. 
3 These  limits  apply  to  the  punishment  of  enlisted  men  only,  183  U.  S.,  365. 


52  LIMITS    OF   PUNISHMENT. 

tary  offense  is  left  to  the  discretion  of  the  court-martial, 
the  punishment  therefor  shall  not,  in  time  of  peace,  be 
in  excess  of  a  limit  which  the  President  may  prescribe."' 

The  last  order  of  the  President  prescribing  limits  of 
punishment  is  as  follows: 

EXECUTIVE  ORDER. 

The  Executive  Order,  dated  June  12,  1905,  establish- 
ing limits  of  punishment  for  enlisted  men  of  the  Army, 
under  an  act  of  Congress  approved  September  27,  1890, 
and  which  was  published  in  General  Orders,  No.  96, 
War  Department,  Washington,  June  19, 1905,  is  amended 
so  as  to  prescribe,  for  time  of  peace,  as  follows:^ 

Article  I. 

In  all  cases  of  desertion  the  sentence  may  include  dis- 
honorable discharge  and  forfeiture  of  pay  and  allow- 
ances. 

Section  1.  Subject  to  the  modifications  authorized  in 
section  2  of  this  article,  the  maximum  limit  of  the  terai 
of  confinement  (at  hard  labor)  for  desertion  committed 
in  time  of  peace  shall  be  three  (3)  years. 

Sec.  2.  The  foregoing  limitations  are  subject  to  modi- 
fication under  the  following  conditions: 

(a)  The  punishment  of  a  deserter  may  be  increased 
by  one  year  of  confinement  at  hard  labor  in  considera- 
tion of  each  previous  conviction  of  desertion. 

(b)  The  punishment  for  desertion  when  joined  in  by 
two  or  more  soldiers  in  the  execution  of  a  conspiracy,  or 
for  desertion  in  the  presence  of  an  outbreak  of  Indians 
or  of  any  unlawful  assemblage  which  the  troops  may 
be  opposing,  shall  not  exceed  dishonorable  discharge, 
forfeiture  of  all  pay  and  allowances,  and  confinement 
at  hard  labor  for  five  years. 


1  This  order  is  published  iu  G.  O.  204,  War  Dept.,  December  15,  1908. 


LIMITS   OF   PUNISHMENT. 

Article  II. 


53 


Except  as  herein  otherwise  indicated,  punishments 
shall  not  exceed  the  limits  prescribed  in  the  following 
table: 


Offenses. 


Limits  of  punishment. 


Under  17th  Article  of 

Wae. 

Selling  liorsc  or  arms,  or  both. 


Selling     accouterments      or 
clothing. 

Losing  or  spoiling  horse  or 
arms  through  neglect. 


Losing  or  spoiling  accouter- 
ments or  clothing  through 
neglect. 

Under  20th  Article  of 
War. 

Behaving  himself  with  dis- 
respect to  his  commanding 
officer. 

Under  24th  Article  of 
War. 

Refusal  to  obey  or  using  vio- 
lence to  officer  or  non- 
commissioned officer  while 
quelling  quarrels  or  dis- 
orders. 

Under  32i)  Article  of 
War. 

Absence  without  leave  i — 
For  not  more   than  six 
hours. 

For  more  than  six  to 
twenty-four  hours,  in- 
clusive. 

J'ur  more  than  one  to 
ten  days,  inclusive. 

For  more  than  ten  days.. 


Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  confinement  at  hard 
labor  for  three  years. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  confinement  at  hard 
labor  for  one  year. 

Six  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  month  for  the  same 
period;  for  noncommissioned  officer,  reduc- 
tion in  addition  thereto. 

Three  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  month  for  the  same 
period;  for  noncommissioned  officer,  reduc- 
tion in  addition  thereto. 


Six  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  month  for  the  same 
period;  for  noncommissioned  officer,  reduc- 
tion in  addition  thereto. 


Dishonorable  discharge,  with  forfeiture  of  all 
pay  and  allowances  and  confinement  at 
hard  labor  for  two  years. 


Forfeiture  of  $2;   corporal,  $3;   sergeant,  $4; 

1st  sergeant  or  noncommissioned  officer  of 

higher  grade,  $5. 
Forfeiture  of  $5;   corporal,  $6;  sergeant,  $7; 

1st  sergeant  or  noncommissioned  officer  of 

higher  grade,  $10. 
Forfeiture  of  $10  and  ten  days'  confinement 

at  hard  labor;  for  noncommissioned  officer, 

reduction  in  addition  thereto. 
Dishonorable  discharge  and  forfeiture  of  all 

pay  and  allowances  and  six  months'  con- 
finement at  hard  labor. 


1  Upon  trial  for  desertion  and  conviction  of  absence  without  leave  only, 
the  court  may,  in  addition  to  the  limit  prescribed  for  such  absence,  award  a 
stoppage  of  the  amount  paid  as  reward  for  the  apprehension  and  delivery  of 
the  accused  to  the  military  authorities.     See  par.  11,  page  50,  atUe. 


54 


LIMITS    OF   PUNISHMENT. 


Offenses. 

Limits  of  punishment. 

Undeu  33d  Article  of 

War. 

Failure  to  repair  at  the  time 

fixed,  to  the  place  appoint- 

ed, etc.— 

For  reveille    or    retreat 

Forfeiture  of  81;   corporal,  8'2;   sergeant,  S3; 

roll  call  and  11  p.  m. 

1st  sergeant,  $4. 

inspection. 

For  assembly   of   gnard 

detail. 

For  guard  mounting  (by 

Forfeiture  of  $5;  corporal,  $8;  sergeant,  $10. 

musician  detailed    for 

guard) 

For  guard  mounting  (by 

musician  not  detailed 

for  guard). 

For  assembly  of  fatigue 

detail. 

For  parade 

For  inspection  and  mus- 
ter, weekly  or  monthly 

•Forfeiture  of  $2;  corporal,  $3;  sergeant,  $5. 

inspection. 

For  target  practice 

For  drill. _■ 

For  stable  duty 

For  athletic  exercises 

For  post  school 

Under  38th  Article  of 

War. 

Found  drunk — 

On  guard 

Six   months'  cnnfinempnt  nt  harit   \aUrtr  nnr! 

forfeiture  of  $10  per  month   for  the  same 

period;  for  noncommissioned  officer,  reduc- 

tion in  addition  thereto. 

On  duty  as  head  cook  .__ 

Forfeiture  of  $20. 

On  extra  or  special  duty. 

At  formation  of  company 

for  drill  or  on  drill. 

At  target  practice 

At  formation  of  company 

for  dress  parade  or  on 

dress  parade. 

At  reveille  or  retreat  roll 

call. 
At  inspection  and  mus- 

Forfeiture of  $12;  for  noncommissioned  officer 
reduction  and  forfeiture  of  $20. 

ter,  weekly  or  month- 

ly inspection. 

At    inspection    of    com- 

pany guard  detail  or  at 

guard  mounting. 

At  stable  duty 

On  fatigue 

LIMITS    OF    PUNISHMENT. 


55 


Offenses. 


Uni>kk  40th  Article  of 
War. 


Quitting  guard. 


Under  51st  Article  of 
War. 


lading  soldiers  to  de.sert. 


U.NnER60TH  Article  OF  War. 


Under  62d  Article  of 
War. 


Manslaiigliter 

Assault,  witli  intent  to  kil 

Burglary 

Forgery  

Perjury 

False  swearing 

Robbery 


Larceny  or  embezzlement  of 
property  ^ — 

Of  the  value  of  more  than 
$100, 

Of  the  value  of  glOO  or 
less  and  more  than  $50. 

Of  the  value  of  $50  or  less 
and  more  than  $20. 

Of  the  value  of  $20  or  less 


Limits  (if  i)unishment. 


Six  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  month  for  the  same 
period;  for  noncommissioned  officer,  reduc- 
tion in  addition  thereto. 


Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  one, year's  confinement 
at  hard  labor. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  four  years'  confinement 
at  hard  labor. 


Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  ten  years'  confinement 
at  hard  labor. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  ten  years' confinement 
at  hard  labor. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  seven  years'  confine- 
ment at  hard  labor 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  four  years'  confinement 
at  hard  labor. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  four  years'  confinement 
at  hard  labor. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  two  years'  confinement 
at  hard  labor. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  seven  years'  confine- 
ment at  hard  labor. 


Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  four  years'  confinement 
at  hard  labor. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  three  years'  confine- 
ment at  hard  labor. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  two  years'  confinement 
at  hard  labor. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  one  year's  confinement 
at  hard  labor. 

1  In  specifications  to  charges  of  larceny  or  embezzlement  the  value  of  the 
property  shall  be  stated. 


56 


LIMITS   OF   PUNISHMENT. 


Offenses. 


Limits  of  ixuiislimeiit. 


Under  62d  Article  of 
War — Continued. 

Fraudulent  enlistment,  pro- 
cured by  false  representa- 
tion or  concealment  of  a 
fact  in  regard  to  a  prior 
enlistment  or  discharge,  or 
in  regard  to  conviction  of 
a  civil  or  military  crime. 

Fraudulent  enlistment,  other 
cases  of. 

Disobedience  of  orders,  in- 
volving willful  defiance  of 
the  authority  of  a  noncom- 
missioned officer  in  the 
execution  of  his  office. 

Using  threatening  or  insult- 
ing language  or  behaving 
in  an  insubordinate  man- 
ner to  a  noncommissioned 
officer  while  in  the  execu- 
tion of  his  office. 

Absence  from  fatigue  duty__. 

Absence  from  extra  or  special 
duty. 

Absence  from  duty  as  com- 
pany, general  mess,  or  hos- 
pital head  cook. 

Introducing  liquor  into  post, 
camp,  or  quarters  in  viola- 
tion of  standing  orders. 

Drunkenness  at  post  or  in 
quarters. 

Drunkeuness  and  disorderly 
conduct,  causing  the  of- 
fender's arrest  and  convic- 
tion by  civil  authorities  at 
a  place  within  ten  miles  of 
his  station. 

Noisy  or  disorderly  conduct 
in  quarters. 

Drunk  and  disorderly  in  post 
or  quarters. 

Abuse  by  noncommissioned 
officer  of  his  authority  over 
an  inferior. 

Noncommissioned  officer  en- 
couraging gambling. 

Noncommissioued  officer 
making  false  report. 

Sentinel  allowing  a  prisoner 
under  his  charge  to  escape 
through  neglect. 

Sentinel  willfully  suffering 
prisoner  under  his  charge 
to  escape. 


Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  confinement  at  hard 
labor  for  one  year. 


Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  confinement  at  hard 
labor  for  six  months. 

Six  mouths'  confinement  at  hai'd  labor  and 
forfeiture  of  flO  per  month  for  the  same 
period;  for  noncommissioned  officer,  reduc- 
tion in  additioo  thereto. 

Two  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  month  for  the  same 
period;  for  noncommissioned  officer,  reduc- 
tion in  addition  thereto. 


Forfeiture  of  $4;  corporal,  $5;  sergeant,  $6. 
Forfeiture  of  |4;  corporal,  $5;  sergeant,  $6 . 


Forfeiture  of  $10. 


Forfeiture  of  $3;  for  noncommissioned  offi- 
cer, reduction  and  forfeiture  of  $5. 

Forfeiture  of  $3;  for  noncommissioned  offi- 
cer, reduction  and  forfeiture  of  $5. 

Forfeiture  of  $10  and  seven  days'  confine- 
ment at  hard  labor;  for  noncommissioned 
officer,  reduction  and  forfeiture  of  $12. 


Forfeiture  of  $1;  corporal,  $7;  sergeant,  $10. 

Forfeiture  of  $7;  for  noncommissioned  offi- 
cer, reduction  and  forfeiture  of  $10. 

Reduction,  three  months'  confinement  at 
hard  labor,  and  forfeiture  of  $10  per  month 
for  the  same  period. 

Reduction  and  forfeiture  of  $5. 

Reduction,  forfeiture  of  $8,  and  ten  days' 
confinement  at  hard  labor. 

Six  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  month'  for  the  same 
period. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  one  year's  confine- 
ment at  hard  labor. 


LIMITS    OF   PUNISHMENT. 


Offenses. 


Limits  of  punishment. 


Under  62d  Article  of 
War — Continued. 

Sentinel  allowing  a  prisoner 
under  his  charge  to  obtain 
liquor. 

Sentinel  or  member  of  guard 
drinking  liquor  with  pris- 
oners. 

Disrespect  or  affront  to  a  sen- 
tinel. 


Resisting  or  disobeying  sen- 
tinel in  lawful  execution 
of  his  duty. 

Lewd  or  indecent  exposure 

of  person. 
Committing   nuisance  in  or 

about  quarters. 
Breach  of  arrest  in  quarters.. 


Two  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  month  for  the  same 
period. 

Two  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  month  for  the  same 
period. 

Two  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  month  for  the  same 
period;  for  noncommissioned  officer,  reduc- 
tion in  addition  thereto. 

Six  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  month  for  the  same 
period;  for  noncommissioned  officer,  reduc- 
tion in  addition  thereto. 

Three  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  mouth  for  the  same 
period;  for  noncommissioned  officer,  reduc- 
tion in  addition  thereto. 

One  month's  confinement  at  hard  labor  and 
forfeiture  of  $10;  for  noncommissioned 
officer,  reduction  in  addition  thereto. 


Article  III. 

The  introduction  and  use  of  evidence  of  previous  con- 
victions is  subject  to  the  following  regulations: 

Section  1.  Such  evidence  shall  be  limited,  except  as 
provided  in  section  5  of  this  article,  to  previous  convic- 

EXECtJTIVE   ORDER. 

The  Executive  Order  dated  November  25,  1908,  establishing  limits  of 
punishment  for  enlisted  men  of  the  Army,  under  Act  of  Congress  approved 
September  27,  1890,  which  order  was  published  in  General  Orders  No.  204, 
War  Department,  December  15,  1908,  is  amended  by  adding  thereto  maxi- 
mum limits  for  certain  offenses  committed  by  military  prisoners  held  in 
confinement  under  sentences  involving  dishonorable  discharge,  as  follows: 


Offenses. 


Limits  of  punishment. 


Under  6M  Article  of  War. 
(«)  Attempt  to  escape 


Six    months'   confinement    at    hard 
labor. 

(6)  Conspiring  with  others  to  escape.-    Six    months'   confinement  at    hard 

labor. 


(c)  Escape  from  sentry  or  guard  or 
from  place  of  confinement  or 
while  on  parole. 


One    year's    confinement     at    hard 
labor. 


The  Vhite  House,  March  3,  1910. 


WM.  H.  TAFT. 


58  LIMITS    OF   PUNISHMENT. 

tions  by  court-martial  of  an  offense  or  offenses  within 
one  year  preceding  the  date  of  commission  of  any 
offense  charged  and  during  the  current  enlistment. 
These  convictions  must  be  proved  by  the  records  of 
previous  trials  and  convictions,  or  by  duly  authenticated 
copies  of  such  records,  or  by  duly  authenticated  copies 
of  the  orders  promulgating  such  trials  and  convictions. 
Charges  forwarded  to  the  authority  competent  to  order 
a  general  court-martial,  or  submitted  to  a  summary, 
garrison,  or  regimental  court-martial,  must  be  accom- 
panied by  the  proper  evidence  of  previous  convictions. 

Sec.  2.  Whenever  a  soldier  is  convicted  of  an  offense 
for  which  a  discretionary  punishment  is  authorized,  the 
court  will  receive  evidence  of  previous  convictions  (see 
section  1  of  this  article) ,  if  there  be  any.  General,  regi- 
mental, and  garrison  courts-martial  will,  after  a  finding 
of  guilty,  be  opened  for  the  purpose  of  ascertaining 
whether  there  is  such  evidence  and,  if  so,  of  receiving  it. 

Sec.  3.  Previous  convictions  in  connection  with  in- 
ferior court  offenses. — When  a  soldier  is  convicted  of  an 
offense  the  punishment  for  which  under  Article  II  of 
this  order  or  the  custom  of  the  service  does  not  exceed 
three  months'  confinement  at  hard  labor  and  forfeiture 
of  three  months'  pay,  the  punishment  so  authorized 
may,  upon  proof  of  previous  convictions  (see  section  1 
of  this  article)  be  increased  one-half  for  each  of  such 
convictions  up  to  the  limit  of  three  months'  confinement 
at  hard  labor  and  forfeiture  of  three  months'  pay,  and, 
for  noncommissioned  officer  or  first-class  private,  re- 
duction in  addition  thereto.  In  case  of  a  soldier  whose 
total  length  of  service  does  not  exceed  one  year,  upon 
proof  of  five  or  more  of  such  convictions,  if  the  total 
of  the  sentences,  substitutions  considered  (see  Article 
VII),  equals  or  exceeds  forfeiture  of  $50  or  confinement 
at  hard  labor  for  100  days,  the  limit  of  punishment 
shall  be  dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  confinement  at  hard  labor  for 
three  months ;  but  in  cases  where  the  length  of  service 
exceeds  one  year,  the  limit  of  punishment  shall  be  as 
just  stated  upon  proof  of  five  or  more  previous  convic- 
tions, whatever  the  character  of  the  sentences  may 
have  been,  but  if  dishonorable  discharge  be  not  ad- 
judged, the  limit  shall  be  three  months'  confinement  at 
hard  labor  and  forfeiture  of  three  months'  pay,  and, 
for  a  noncommissioned  officer  or  first-class  private, 
reduction  in  addition  thereto. 

Sec.  4.  Previous  convictions  in  connection  with  gen- 
eral court-martial  off'enses. — When  the  conviction  is  for 


LIMITS    OF   PUNISHMENT.  59 

an  offense  punishable  under  Article  II  of  this  order  or 
the  custom  of  the  service  with  a  greater  punishment 
than  three  months'  confinement  at  hard  labor  and  for- 
feiture of  three  months'  pay,  such  punishment  shall  not 
be  increased  by  reason  of  previous  convictions,  except 
as  hereinafter  specified ;  but  evidence  of  those  described 
in  section  1  of  this  article  will  be  submitted  to  the  court 
to  aid  it  to  determine  upon  the  proper  measure  of  pun- 
ishment subject  to  the  limit  already  authorized.  In  the 
case  of  a  soldier  whose  total  length  of  service  does  not 
exceed  one  year,  upon  proof  of  five  or  more  of  such  con- 
victions, if  the  total  of  the  sentences,  substitutions  con- 
sidered (see  Article  VII) ,  equals  or  exceeds  forfeiture 
of  $50  or  confinement  at  hard  labor  for  100  days,  the 
court  may,  if  the  authorized  limit  does  not  include  dis- 
honorable discharge,  adjudge  dishonorable  discharge 
and  forfeiture  of  all  pay  and  allowances  with  the  author- 
ized confinement ;  but  in  cases  where  the  length  of  service 
exceeds  one  year,  the  limit  of  punishment  shall  be  as  just 
stated,  upon  proof  of  five  or  more  previous  convictions, 
whatever  the  character  of  the  sentences  may  have  been. 

Sec.  5.  On  a  conviction  of  desertion  evidence  of  con- 
victions of  previous  desertions  may  also  be  introduced, 
irrespective  of  the  enlistment  or  of  the  period  which 
may  have  elapsed  since  such  conviction  or  convictions. 

Sec.  6.  When  a  noncommissioned  officer  is  convicted 
of  an  offense  not  punishable  with  reduction,  he  may, 
upon  proof  of  one  previous  conviction  within  the  pre- 
scribed period  (see  section  1  of  this  article) ,  be  sentenced 
to  reduction  in  addition  to  the  punishment  already 
authorized. 

Sec.  7.  First-class  privates  may  be  reduced  to  second- 
class  privates  in  all  cases  where  for  like  offenses  on  the 
part  of  noncommissioned  officers  their  reduction  in 
grade  is  now  authorized. 

Article  IV. 

When  a  soldier  shall,  on  one  arraignment,  be  con- 
victed of  two  or  more  offenses,  none  of  which  is  punish- 
able under  Article  II  of  this  order  or  the  custom  of  the 
service  with  dishonorable  discharge,  but  the  aggregate 
term  of  confinement  for  which,  as  specified  in  said 
article,  may  exceed  six  months,  dishonorable  discharge 
with  forfeiture  of  pay  and  allowances  may  be  awarded 
in  addition  to  the  authorized  confinement. 


60  SENTENCE. 

Article  V. 

If,  in  any  case  where  the  limit  of  punishment  is  dis- 
honorable discharge,  forfeiture  of  ail  pay  and  allow- 
ances, and  confinement  at  hard  labor  for  a  stated 
number  of  months,  dishonorable  discharge  be  not  ad- 
judged, the  limit  of  forfeiture  shall  be  all  pay  due  and  to 
become  due  during  the  prescribed  limit  of  confinement. 

Article  VI. 

This  order  prescribes  the  maximum  limit  of  punish- 
ment for  the  offenses  named,  and  this  limit  is  intended 
for  those  cases  in  which  the  severest  punishment  should 
be  awarded.  In  other  cases  the  punishment  should  be 
graded  down  according  to  the  extenuating  circum- 
stances. Offenses  not  herein  provided  for  remain  pun- 
ishable as  authorized  by  the  Articles  of  War  and  the 
custom  of  the  service. 

Article  VII. 

Substitutions  for  punishment  named  in  Article  II  of 
this  order  are  authorized  at  the  discretion  of  the  courts 
at  the  following  rates : 

Two  days'  confinement  at  hard  labor  for  one  dollar 
forfeiture,  or  the  reverse;  one  day's  solitary  confine- 
ment on  bread  and  water  diet  for  two  days'  confinement 
at  hard  labor  or  for  one  dollar  forfeiture;  provided  that 
a  noncommissioned  officer  not  sentenced  to  reduction 
shall  not  be  subject  to  confinement;^  and  provided  that 
solitary  confinement  shall  not  exceed  fourteen  days  at  one 
time,  nor  be  repeated  until  fourteen  days  have  elapsed, 
and  shall  not  exceed  eighty-four  days  in  one  year. 

This  order  shall  become  operative  in  the  United  States 
and  contiguous  Territories  thirty  days  after  its  date, 
and  elsewhere  within  the  jurisdiction  of  the  United 
States  sixty  days  from  its  date. 

THEODORE  ROOSEVELT. 
The  White  House, 

November  25,  1908. 

\ 

SENTENCE.  2 

1.  When  in  any  case  the  punishment  is,  by  the  Arti- 
cles of  War,  left  to  the  discretion  of  the  court-martial, 

1  Forfeiture  may  be  substituted  for  the  coufiuenient  in  tlie  prescribed 
limit. 

2  For  forms  for  sentences  see  page  170,  post. 


SENTENCE.  61 

the  court  will,  before  proceeding  to  award  the  punish- 
ment, ascertain  whether  a  limit  has  been  fixed  by  the 
foregoing  executive  order.  ^  Those  members  desiring  to 
propose  a  sentence  usually  write  it  on  a  slip  of  paper 
and  hand  it  to  the  president.  The  president  reads  the 
proposed  sentences  to  the  court  and  the  members  vote 
on  them  in  order,  beginning  with  the  lightest,  until  a 
majority  agree  upon  a  sentence.  In  a  case  where  a  pun- 
ishment is  fixed,  the  members  vote  upon  a  sentence 
awarding  this  punishment.  Upon  a  death  sentence 
two-thirds  of  the  members  must  concur  (the  record  so 
explicitly  stating) ,  and  no  person  can  be  sentenced  to 
death  except  in  cases  expressly  mentioned  in  the  Arti- 
cles of  War,  or  in  section  1343,  Revised  Statutes,  as 
thus  punishable. - 

2.  Courts -martial  in  awarding  sentences  upon  mili- 
tary convicts  are  restricted  to  imposing  additional  con- 
finement to  be  served  upon  the  completion  or  termina- 
tion of  their  existing  sentences,  and  will  not  interfere 
with  the  manner  of  executing  such  sentences  by  pre- 
scribing loss  of  good-conduct  time,  solitary  confinement, 
or  confinement  on  bread  and  water  diet,  leaving  all  such 
punishments  to  be  imposed  by  the  commanding  officer 
as  the  ordinary  means  of  enforcing  discipline.^ 

3.  A  general  court-martial  may  sentence  a  soldier  to 
confinement  in  a  penitentiary  for  any  offense  which 
may  be  thus  punished  "by  some  statute  of  the  United 
States,  or  by  some  statute  of  the  State,  Territory,  or 
District  in  which  such  offense  may  be  committed,  or  by 
the  common  law,  as  the  same  exists  in  such  State,  Ter- 
ritory, or  District."^  When,  therefore,  the  sentence  of 
such  a  court-martial  prescribes  imprisonment,  the  court 
' '  will  state  therein  whether  the  prisoner  shall  be  con- 

i"Wlieii  a  sentence  of  confinement  or  forfeiture  is  in  excess  of  the 
legal  limit,  the  part  within  the  limit  is  legal  and  may  be  executed." 
(Par.  977,  A.  R.) 

2  96th  A.  W. 

3G.  0.  42,  W.D.,  1910. 

'♦97th  A.  W.     See  note  1,  page  51,  a>i^e. 


62  SENTENCE. 

fined  in  a  penitentiary  ^  or  in  some  place  under  military 
jurisdiction,  being  guided  in  its  determination  by  the 
97tli  Article  of  War.  Where  from  any  cause  there  is  a 
doubt  in  the  mind  of  the  court  whether  the  offense  is 
punishable  by  penitentiary  confinement,  such  words  as 
'in  such  place  as  the  reviewing  authority  may  direct' 
will  be  used  in  the  sentence."  -^ 

4.  "When  a  sentence  imposes  forfeiture  of  pay,  or 
of  a  stated  portion  thereof,  for  a  certain  number  of 
months,  it  stops  for  each  of  those  months  the  amount 
stated.  Thus:  'Ten  dollars  of  monthly  pay  for  one 
year'  would  be  a  stoppage  of  $120.  When  the  sentence 
is  silent  as  to  the  date  of  commencement  of  forfeiture  of 
pay,  the  forfeiture  will  begin  with  the  period  for  which 
pay  has  accrued  since  last  payment.  A  forfeiture  not 
limited  by  the  sentence  to  any  particular  month  or 
months  or  other  space  of  time,  but  expressed  simply  as 
a  forfeiture  of  so  many  months'  pay,  or  of  a  certain 
amount  of  pay,  is  legally  chargeable  against  the  pay 
due  and  payable  at  the  next  payment,  and  the  balance,, 
if  any,  against  pay  accruing  thereafter,  until  the  for- 
feiture is  fully  satisfied,  but  the  rate  of  forfeiture  will 
be  the  rate  of  pay  the  soldier  is  entitled  to  receive  at 
the  date  of  the  promulgation  of  the  sentence."  ^ 

5.  "Notwithstanding  a  sentence  contemplates  pay- 
ment of  a  stated  sum  to  a  soldier  upon  his  release  from 
confinement,  it  can  not  be  made  unless  there  is  a  suffi- 
cient balance  to  his  credit  after  all  authorized  stoppages 
are  deducted."  "* 

6.  "A  sentence  adjudging  a  dishonorable  discharge 
to  take  effect  at  such  period  during  a  term  of  confine- 

1  Unless  the  laws  of  the  State,  Territory,  etc.,  in  which  the  court  is  con- 
vened are  at  hand,  it  is  impossible  for  the  court  to  determine  in  all  cases 
whether  or  not  under  the  97th  Article  of  War,  the  offender  is  punishable 
by  penitentiary  confinement. 

2Par.  974,  A.  R. 

3  Id.,  985. 

4/(«.,  987. 


RECORD    OF   PR0rEET)TNr4,^.  63 

ment  as  may  be  designated  by  the  reviewing  authority 
is  illegal."^ 

RECORB  OF  PROCEEDINGS. 2 

1.  Every  court-martial  will  keep  an  accurate  record^ 
of  its  proceedings.  The  record  in  each  case  will  be 
complete  in  itself,  and  will  contain  a  copy  of  the  order 
appointing  the  court.  It  will  be  authenticated  by  the 
signatures  of  the  president  and  judge-advocate,  the 
latter  affixing  his  signature  to  each  day's  proceedings. 
Whenever,  by  reason  of  the  death  or  disability  of  the 
judge-advocate  occurring  after  the  court  has  decided 
on  the  sentence,  the  record  can  not  be  authenticated  by 
his  signature,  it  must  show  that  it  has  been  formally 
approved  by  the  court  and  must  be  authenticated  by 
the  signature  of  the  president.^  The  record  must  show 
that  the  court  was  organized  as  the  law  requires,  that 
the  prisoner  was  asked  if  he  wished  to  object  to  any 
member  and  his  answer  to  such  question,  and  that  the 
members  of  the  court  and  the  judge-advocate  were  duly 
sworn. 

2.  The  reading  of  previous  proceedings  and  of  testi- 
mony for  approval  will  be  dispensed  with,  unless  for 
special  reason  considered  necessary  by  the  court,  or  a 
witness  desires  to  have  certain  testimony  read  for  cor- 
rection. ^ 

3.  All  orders  modifying  the  detail  of  the  court  and 
issued  after  its  original  organization  must  be  incorpo- 
rated in  the  record.  The  record  should  also  note  the 
fact  of  a  new  member  taking  his  seat,  or  a  new  judge- 
advocate  commencing  to  officiate,  according  to  orders, 
on  a  certain  day.     (But,  see  page  29,  par.  A,  ante.) 

iPar.  983,  A.  R. 

-  For  form  of  record  for  general  court-martial  see  page  146,  post. 

3  "  When  records  of  trial  by  general  court-martial  are  written  on  the  type- 
writer, the  copyable  ribbon  will  be  used  when  practicable."    (Par.  989,  A.  R.) 

4  Par.  988,  A.  R. 

5  0ir.  No.  27,  A.  G.  0.,1897. 


64  RECORD    OF    PROCEEDINGS. 

4.  The  entire  proceedings  will  be  spread  npon  the 
record;  all  orders  and  rulings  of  the  court;  all  motions, 
propositions,  objections,  arguments,  statements,  etc., 
of  the  judge-advocate  or  the  accused;  the  testimony  of 
each  witness,  as  nearly  as  possible  in  his  own  language; 
in  short,  every  feature  of  the  proceedings  material  to  a 
complete  history  of  the  case  and  to  a  correct  under- 
standing of  every  point  of  the  same  by  the  reviewing 
authority  will  be  recorded  at  length.  Testimony  taken 
before  regimental  or  garrison  courts-martial  will  not  be 
reduced  to  writing.^ 

5.  Where  a  soldier  deserts  and,  without  a  discharge 
from  his  original  term,  enlists  under  a  different  name, 
the  specifications  to  the  charges  of  desertion  and  fraudu- 
lent enlistment  will  set  forth  the  offenses  under  the  origi- 
nal name  and  organization,  and  include  the  other  name, 
etc.,  under  an  alias,  and  the  arraignment,  findings,  sen- 
tence, and  action  of  the  reviewing  authority  will  also 
give  the  original  name  and  organization,  followed  by 
the  other  name,    etc.,  under  an  alias,  e.  g.,  Private 

A B ,  Troop  , U.  S.  Cavalry  {original 

name,  etc.),  alias  Private  C D ,  Co. , , 

U.  S.  Infantry  (other name,  etc.)^ 

6.  Although,  since  the  passage  of  the  act  of  Congress 
of  July  27,  1892,  "to  amend  the  Articles  of  War,  etc.," 
it  is  desirable  that  the  record  of  a  court-martial  should 
show  that  when  it  sat  in  closed  session  the  judge- 
advocate  withdrew,  it  will  not  vitiate  the  proceedings  if 
this  is  not  expressly  stated.  When  the  record  shows 
that  the  court  was  closed,  the  presumption  is  that  it 
was  closed  in  accordance  with  the  requirements  of  law. 

7.  The  "statement  of  service "  referred  to  on  page  19, 
paragraph  3,  ante,  will  not  be  introduced  in  evidence 
nor  made  a  part  of  the  record  of  the  trial,  but  will  be 
considered  by  the  court  and  shown  to  the  accused,  with 


1  Par.  988,  A.  R. 

2  Cir.  No.  76,  W.  D.,  1908.     See  form  for  Kf'i'eral  order  proluulgating  trial 
and  sentence,  page  188,  post. 


REVISION   OF   RECORD.  65 

a  view  to  its  correction  by  the  introduction  of  evidence 
should  it  be  required.  The  statement  will  be  forwarded 
with  the  record  for  file  in  the  office  of  the  Judge- Advo- 
cate-General.^ 

8.  A  recommendation  to  clemency  will  not  be  em- 
braced in  the  body  of  the  sentence;  but  will  be  ap- 
pended to  the  record  after  any  exhibits  referred  to  in 
the  proceedings.  Only  those  members  who  concur  in 
a  recommendation  should  sign  it. 

REVISION  OF  RECORD.2  h 

1.  "When  the  record  of  a  court  exhibits  error  in 
preparation,  or  seemingly  erroneous  conclusions,  the 
reviewing  authority  may  reconvene  the  court  for  a  re 
consideration  of  its  action,  pointing  out  defects.  Should' 
the  court  concur  in  the  views  submitted,  it  will  proceed 
by  amendment  to  correct  its  error,  and  may  modify  or 
completely  change  its  findings.  A  reopening  of  the 
case,  by  calling  or  recalling  witnesses,  is  illegal.""^ 

2.  An  amendment  can  be  made  by  the  court  only 
when  duly  reconvened  for  the  purpose,  and  when  made 
must  be  the  act  of  the  court  as  such.^  A  correction  made 
by  the  president  or  other  member,  or  by  the  judge- 
advocate  independently  of  the  court,  and  by  means  of 
an  erasure  or  otherwise,  is  unauthorized.  If  omissions 
in  the  record  are  to  be  supplied,  the  page  and  line  on 
which  they  occur  will  be  stated  and  the  corrections 
given  in  full.  The  original  record  will  not  be  interlined 
nor  altered  in  any  way. 

REVIEIVING  AUTHORITY. 

1.  "No  sentence  of  a  court-martial  shall  be  carried 
into  execution  until  the  same  shall  have  been  approved 
by  the  officer  ordering  the  court,  or  by  the  officer  com- 
manding for  the  time  being."  ^ 

^See  note  1,  page  138,  post,  as  to  use  of  statement  of  service. 
2  For  form  for  revision  see  jiage  158,  post. 
3 Par.  992,  A.  R. 

4-23  Opin.  Atty.  Genl.,  23;  see  G.  O.  21,  A.  G.  O.,  19CK). 
5104th  A.  W.;  see  par.  193,  A.  K. 
50963 5 


,v.     2 


66  REVIEAVING   AUTHORITY. 

2.  The  officer  having  authority  to  confirm  the  sen- 
tence of  a  court-martial  will  state  at  the  end  of  the 
proceedings  in  each  case  his  decisions  and  orders.^ 

3.  '  'Air sentences  of  a  court-martial  may  be  confirmed 
and  carried  into  execution  by  the  officer  ordering  the 
court,  or  by  the  officer  commanding  for  the  time  being, 
where  confirmation  by  the  President,  or  by  the  com- 
manding general  in  the  field,  or  commander  of  the 
department,"  is  not  required  by  the  Articles  of  War.- 
In  time  of  peace,  sentences  directing  the  dismissal  of 
an  officer  or  inflicting  the  punishment  of  death  require 
confirmation  by  the  President.'''  Proceedings  involving 
either  dismissal  or  death  will  therefore  (except  in  time 
of  war,  in  cases  mentioned  in  the  105th  and  107th  Arti- 
cles of  War)  be  forwarded  by  the  convening  authority, 
after  approval,^  direct  to  the  Judge-Advocate-General 
for  the  action  of  the  President. 

4.  A  military  commander  can  not  delegate  to  an  infe- 
rior or  other  officer  his  function  as  reviewing  authority 
as  conferred  by  the  104th  and  109th  Articles  of  War. 
Nor  can  he  authorize  a  staff  or  other  officer  to  subscribe 
for  him  his  decision  and  orders  on  the  proceedings. 

5.  Every  officer  authorized  to  order  a  court-martial 
has  power  to  pardon  or  mitigate  any  punishment  ad- 
judged by  it,^  except  that  of  death,**  or  the  dismissal  of 
an  officer.'' 

6.  "The  power  to  remit  or  mitigate  punishment  im- 
posed by  a  court-martial,  vested  in  the  authority  who 
appointed  the  court  or  the  corresponding  authority 
under  whose  jurisdiction  the  sentence  is  being  executed, 

1  Par.  990,  A.  K. 

2109th  A.  W.  For  requirement  of  regulations  as  to  "  Officer  commanding 
for  the  time  being,"  see  par.  193,  A.  K. 

3  105th,  106th,  and  108th  i(?. 

4  The  convening  authority,  before  forwarding  the  case,  should  complete 
the  sentence  by  designating  the  place  of  confinement,  where  confinement  is 
imposed  by  the  sentence,  as  in  cases  where  no  confirmation  is  required. 

5112th  A.  W. 
c  105th  id. 
7  lOGth  id. 


REVIEWING    AUTHORITY.  07 

extends  only  to  unexecuted  portions  of  a  sentence.  If 
the  punishment  be  one  imposed  by  a  general  court- 
martial,  it  may  be  remitted  or  mitigated  only  by  an 
officer  competent  to  order  a  general  court-martial  and 
under  whose  jurisdiction  the  sentence  is  being  executed. 
The  fact  that  a  soldier  has  been  dishonorably  discharged 
through  his  sentence  does  not  affect  this  power.  An  ap  • 
plication  for  clemency  in  case  of  a  prisoner  sentenced  to 
confinement  in  a  penitentiary ,  or  in  the  United  States 
Military  Prison  or  any  branch  thereof,  will  be  for- 
warded to  the  Secretary  of  War  for  the  action  of  the 
President.  A  military  prisoner  sentenced  to  confine- 
ment in  a  penitentiary,  or  in  the  United  States  Military 
Prison  or  any  branch  thereof,  will,  so  far  as  concerns 
the  exercise  of  clemency,  be  considered  to  have  passed 
beyond  the  jurisdiction  of  a  division  or  department  com- 
mander from  the  date  of  the  approval  of  his  sentence, 
without  regard  to  the  fact  of  his  being  temporarily  re- 
tained within  the  command  of  the  division  or  depart- 
ment commander  pending  transfer  to  a  penitentiary,  or 
the  United  States  Military  Prison  or  any  branch  thereof. 
The  power  to  commute  sentences  imposed  by  military 
tribunals,  not  being  vested  in  military  commanders,  can 
be  exercised  by  the  President  only."  ^ 

7.  "Any  officer  who  has  authority  to  carry  into  exe- 
cutton  the  sentence  of  death,  or  of  dismissal  of  an 
officer,  may  suspend  the  same  until  the  pleasure  of  the 
President  shall  be  known:  and,  in  such  case,  he  shall 
immediately  transmit  to  the  President  a  copy  of  the 
order  of  suspension,  together  with  a  copy  of  the  pro- 
ceedings of  the  court.  "-^ 


1  Par.  951,  A.  R. 

2111th  A.  W.  Immediately  upon  the  promulgation  of  any  sentence  of 
court-martial  in  the  case  of  a  commissioned  officer  involving  suspension  from 
rank  and  command,  confinement,  reduction  in  lineal  rank,  or  any  other 
material  change  in  the  officer's  status,  the  commander  who  has  authority 
to  approve  such  sentence  and  carry  it  into  execution  will  advise  The  Adju- 
tant-General of  the  Army  by  telegraph  of  the  sentence  imposed  as  approved 
or  mitigated  and  the  date  of  promulgation  thereof.     (G.  0.  6,  W.  D.,  1910.) 


68  REVIEWING   AUTHORITY. 

8.  While  a  reviewing  authority  may  remit  or  miti- 
gate a  sentence,  he  can  not  change  it  so  as  to  impose  a 
punishment  of  a  different  nature;  thus,  he  can  not 
change  a  sentence  of  dishonorable  discharge  awarded 
an  enlisted  man  to  confinement  at  hard  labor;  ^  but  a 
legal  sentence  of  dishonorable  discharge,  forfeiture  of 
all  pay  and  allowances  due,  and  confinement  at  hard 
labor  for  a  definite  period  may  be  mitigated  by  the 
authority  designated  in  paragraph  6,  page  66,  ante,  to 
confinement  at  hard  labor  and  forfeiture  of  all  pay  and 
allowances  for  a  period  not  to  exceed  the  period  of  con- 
finement awarded  in  the  sentence.- 

9.  "  The  authority  which  has  designated  the  place  of 
confinement,  or  higher  authority,  may  change  the  place 
of  confinement  of  any  prisoner  under  the  jurisdiction  of 
such  authority;"'^  but  "  when  the  court  has  sentenced 
a  prisoner  to  confinement  at  a  post,  no  power  is  compe- 
tent to  increase  the  punishment  by  designating  a  peni- 
tentiary as  the  place  of  confinement."^  When  a  peni- 
tentiary has  been  erroneously  designated  the  reviewing 
authority  may  disapprove  it  and  designate  a  proper 
place. 

10.  When  general  courts-martial  have  properly  sen- 
tenced soldiers  to  confinement  in  a  penitentiary,^  "de- 
partment commanders  will  designate  the  United  States 
Penitentiary  at  Leavenworth,  Kans.,  as  the  place  of 
such  execution  of  sentence,  in  cases  in  which  the  term 
of  confinement  imposed  is  more  than  one  year.  If 
any  State  or  Territory  within  a  military  department 
has  made  provision  by  law  for  the  confinement  of  such 
prisoners  in  its  penitentiaries,  the  department  com- 
mander, with  the  approval  of  the  Secretary  of  War, 
may  designate  one  as  the  place  of  execution  of  sentence.  '"* 

1  As  to  authority  of  reviewing  officer  to  change  finding,  see  page  47,  note 
1,  ante. 
2Cir.  48,  A.  G.  0.,  1900. 

3  Par.  980,  A.  R. 

4  Id.,  976.  A  punishment  of  confinomcnt  in  a  penitentiary,  whon  legal, 
may  be  mitigated  to  conJinement  at  a  military  post. 

^See  page  51,  i)ar.  12,  ante. 
e  Par.  975,  A.  E. 


REVIEWING    AUTHORITY.  69 

11.  ""When  a  sentence  of  confinement  or  forfeiture  is 
in  excess  of  the  legal  limit,  the  part  within  the  limit  is 
legal  and  may  be  executed."  ^ 

12.  "The  time  at  which  a  dishonorable  discharge  is 
to  take  effect,  as  fixed  by  a  sentence,  can  not  be  post- 
poned by  the  reviewing  officer."  - 

13.  "A  sentence  to  confinement,  with  or  without  for- 
feiture of  pay,  can  not  become  operative  prior  to  the 
date  of  confirmation.  If  it  be  proper  to  take  into  con- 
sideration the  length  of  confinement  to  which  the  pris- 
oner has  been  subjected  previous  to  such  confirmation, 
it  may  be  done  by  mitigation  of  sentence." ^ 

14.  "An  order  remitting  a  forfeiture  of  pay  operates 
only  on  the  pay  to  become  due  on  and  after  the  date  of 
the  order."-* 

15.  "The  order  promulgating  the  proceedings  of  a 
court  and  the  action  of  the  reviewing  authority  will, 
when  practicable,  be  of  the  same  date.  When  this  is 
not  practicable,  the  order  will  give  the  date  of  the  action 
of  the  reviewing  authority  as  the  date  of  the  beginning 
of  the  sentence.  This  does  not  apply  to  sentences  of 
forfeiture  of  all  pay  and  allowances.  A  soldier  await- 
ing result  of  trial  will  not  be  paid  before  the  result  is 
known."  = 

16.  "Trials  by  general  courts-martial,  including  so 
much  of  the  proceedings  as  will  give  the  charges  and 
specifications,  the  pleadings,  findings,  and  sentence,  and 
the  action  and  remarks  of  the  reviewing  authority,  will 
be  announced  in  general  orders  issued  from  the  War 
Department  or  from  the  proper  division  or  department 
headquarters.  If  the  charges  contain  matter  which  for 
any  reason  is  unfit  for  publication,  such  matter  will  be 
omitted  from  the  order,  but  a  copy  thereof  will  be 
promptly  furnished  by  the  reviewing  authority  to  the 
commanding  officer  of  the  post  at  which  the  officer  or 
soldier  is  confined,  to  be  included  with  the  papers  re- 

iPar.  977,  A.  li.  ^Id.,  984.  ^ Id.,  981. 

i  Id.,  986.  ^  Id.,  919. 


70  CONFINEMENT   AFTER    TRIAL. 

quired  by  paragraph  946  to  be  sent  to  the  commanding 
officer  of  the  post  or  military  prison  where  the  sentence 
of  confinement  is  to  be  executed."  ^ 

CONFINEMENT   AFTER   TRIAE. 

1.  "Enlisted  men  *  *  *  who  have  been  tried  will, 
prior  to  the  promulgation  of  the  result,  be  designated 
as  '  awaiting  result  of  trial; '  enlisted  men  serving  sen- 
tences of  confinement,  not  involving  dishonorable  dis- 
charge, will  be  designated  as  'garrison  prisoners;' 
those  sentenced  to  dishonorable  discharge  and  to  terms 
of  confinement  at  military  posts  or  elsewhere  will  be 
designated  as  'military  convicts.'  "- 

2.  "  Prisoners  awaiting  trial  by,  or  undergoing  sen- 
tence of,  general  court-martial  and  those  confined  for 
serious  offenses  will,  if  practicable,  be  kept  apart  from 
those  confined  by  sentence  of  an  inferior  court,  or  for 
minor  offenses.  Enlisted  men  awaiting  trial  or  awaiting 
result  of  trial  will  not  be  sent  to  work  with  garrison 
prisoners  or  military  convicts  if  it  can  be  avoided,  and 
may,  in  the  discretion  of  the  commanding  officer,  be  re- 
quired to  attend  drills,  or  sent  to  work  under  charge  of  a 
sentinel ,  during  the  usual  working  hours.  Military  con- 
victs will  not  be  confined  with  other  prisoners  except  in 
cases  of  necessity."  '^ 

3.  "  Prisoners  will  not  be  placed  in  irons  except  pur- 
suant to  sentence  of  a  court-martial,  or  in  the  extraor- 
dinary case  of  a  prisoner  who,  in  the  judgment  of  the 
commanding  officer,  is  a  desperate  or  dangerous  char- 
acter, in  which  case  report  of  action  and  the  circum- 
stances will  be  immediately  made  to  the  department 
commander.  A  prisoner  may  be  shackled  or  handcuffed 
while  being  transported  from  one  post  to  another,  or 
from  a  post  to  a  penitentiary  when,  in  the  judgment  of 

1  Par.  993,  A.  R.     For  form  for  general  order,  see  page  188,  pout. 
2i(L,  936. 

•^ Id.,  9iU.  For  bpecial  rules  relating  to  i)ri.soiiers,  see  G.  O.  \r,'>,  W.  I). 
1908. 


CONFINEMENT    AFTER    TRIAL.  71 

the  officer  in  charge,  the  escape  of  the  prisoner  can  not 
otherwise  be  prevented." ' 

4.  "  Prisoners  will  be  forwarded  from  places  of  trial 
to  posts  at  which  they  are  sentenced  to  serve  confine- 
ment only  on  orders  of  department  commanders  or 
higher  authority.  The  strength  of  guards  to  accom- 
pany them  will  be  limited  to  the  necessities  of  safe 
delivery.  Orders  detailing  guards  in  charge  of  military 
prisoners  will  provide  for  the  return  journey  of  the 
guard  and  for  commutation  of  rations,  when  such  com- 
mutation is  necessary.  The  commanding  officer  of  a 
post  from  which  a  prisoner  is  transferred  will  send  under 
seal,  to  the  commanding  officer  of  the  post  where  the 
sentence  of  confinement  is  to  be  executed,  the  following 
papers  in  his  case,  viz:  Discharge  papers,  if  discharged, 
descriptive  list,  orders  promulgating  and  modifying 
sentences,  statement  of  conduct  while  under  sentence  to 
date  of  transfer,  and  a  list  of  clothing  in  possession  of 
the  prisoner  when  forwarded."'^ 

5.  "All  serviceable  clothing  which  belongs  to  a  pris- 
oner, and  his  blankets,  will  accompany  him  to  the  post 
designated  for  his  confinement,  and  will  be  fully  item- 
ized on  the  clothing  list  mentioned  in  the  preceding- 
paragraph.  The  guard  in  charge  of  the  prisoner  during 
transfer  will  be  furnished  with  a  duplicate  of  this  list 
and  will  be  held  responsible  for  the  delivery  of  all  arti- 
cles itemized  therein,  with  the  prisoner.  At  least  one 
serviceable  woolen  blanket  will  be  sent  with  every  such 
prisoner  so  transferred.  "^ 

6.  "The  personal  effects  of  military  prisoners  who 
have  escaped  from  confinement,  except  such  as  possess 
some  special  value  as  keepsakes,  may  be  disposed  of  by 
sale  as  in  the  case  of  effects  of  deceased  soldiers,  and 
the  proceeds  thereof,  together  with  any  money  left  by 

1  Par.  943,  A.  K. 

2W.,94C.  This  list  of  dothins  will  show  the  particuhir  kinds  of  cloth- 
ing and  the  i)rices  thereof  as  set  forth  on  the  annual  clothing;  jirice  list. 
(Cir.  47,  \V.  D.,  1909.) 

3/,?.,  947. 


72  CONFINEMENT    AFTER    TRIAL. 

the  prisoner  in  the  hands  of  the  company  commander, 
be  turned  over  to  a  paymaster,  who  shouhl  account  for 
the  same  in  the  manner  provided  for  paymaster's  col- 
lections. The  officer  will  take  the  paymaster's  receipt 
for  the  amount  paid  him  and  forward  the  same  to  the 
Auditor  for  the  War  Department."^ 

7.  "Military  convicts,  other  than  those  confined  in 
penitentiaries,  will  be  allowed  in  abatement  of  their 
terms  of  confinement  when  serving  sentences  of  over 
three  months  and  not  over  twelve  months  five  days  for 
each  complete  period  of  twenty-five  days  during  the 
whole  of  which  their  conduct  has  been  good;  but  the 
abatement  of  five  days  so  authorized  shall  not  have 
the  effect  in  any  case  of  reducing  the  confinement  below 
three  months.  On  sentences  exceeding  one  year  they 
will  be  allowed  the  foregoing  abatement  for  the  first 
year  of  the  sentence  including  abatement,  and  there- 
after ten  days  for  each  complete  period  of  twenty  days 
during  the  whole  of  which  their  conduct  has  been  good. 
Abatements  thus  authorized  may  be  forfeited,  wholly 
or  in  part,  by  subsequent  misconduct,  such  forfeiture 
to  be  determined  by  the  commanding  officer  of  the  post 
where  the  prisoner  is  confined.  A  military  convict  serv- 
ing sentence  in  a  penitentiary  will  be  allowed  the  abate- 
ment authorized  for  convicts  in  that  penitentiary.  "^ 

8.  "  When  the  date  for  the  commencement  of  a  term 
of  confinement  imposed  by  sentence  of  a  court-martial 
is  not  expressly  fixed  by  the  sentence,  the  term  of  con- 
finement begins  on  the  date  of  the  order  promulgating 
it.  The  sentence  is  continuous  until  the  term  expires, 
except  when  the  person  sentenced  is  absent  without 
authority."^  The  word  days  in  a  sentence  of  confine- 
ment means  periods  of  twenty-four  hours,  counting  from 
guard-mounting  on  the  first  day  of  the  sentence.^ 


1  Par.  !M.S,  A.  11.  -  /(/.,  950.  :</</.,  !I78. 

■Trisoiicrs  anf  rclea8c<l  at  guar(i-iuuuiitiiij.C  uii  day  of  oxpiratiuii  of  soi 
tt'ijce. 


HABEAS   CORPUS.  73 

9.  "When  soldiers  awaiting  result  of  trial  or  under- 
going sentence  commit  offenses  for  which  they  are 
tried,  the  second  sentence  will  be  executed  upon  the 
expiration  of  the  first."  ^ 

10.  Where  a  soldier,  while  undergoing  sentence  of 
confinement  imposed  without  dishonorable  discharge, 
is  tried  for  a  further  offense  and  sentenced  to  dis- 
honorable discharge  and  confinement,  the  period  of 
confinement  under  his  prior  sentence  will  terminate 
upon  the  date  of  his  dishonorable  discharge,  leaving  to 
be  executed  only  the  confinement  imposed  by  the  second 
sentence. 

11.  "No  military  convict  will  be  released  from  con- 
finement except  on  an  order  communicated  by  the  com- 
manding officer,  who,  before  giving  such  order,  will 
himself  verify  the  date  of  expiration  of  the  convict's 
sentence  by  examining  all  orders  fixing  or  modifying 
his  term  of  confinement."  - 

HABEAS  CORPUS. 

1.  "Officers  will  make  respectful  returns,  in  writing, 
to  all  writs  of  habeas  corpus  served  on  them.  When 
the  writ  is  issued  by  a  State  court  or  judge,  and  the 
person  held  by  the  army  officer  is  a  civilian  who  has 
been  apprehended  under  a  warrant  of  attachment  to  be 
taken  before  a  court-martial  to  testify  as  a  witness,  the 
officer  will  not  produce  the  body,  but  will,  by  his  return, 
set  forth  fully  the  authority  by  which  he  holds  the  per- 
son, and  allege  that  the  State  authority  is  without  juris- 
diction to  issue  the  writ  of  habeas  corpus,  and  ask  to 
have  the  same  dismissed.  He  will  also  exhibit  to  the 
court  or  officer  issuing  the  writ  of  habeas  corpus  the 
warrant  of  attachment  and  the  subpoena  (and  the  proof 
of  the  service  of  the  subpoena)  on  which  the  warrant  of 
attachment  was  based,  and  also  a  certified  copy  of  the 
order  convening  the  court-martial  before  which  he  had 
been  commanded  to  take  the  person."  ^ 

1  Par.  982,  A.  R.  2  il.,  949.  3  j,i     io07. 


74  HABEAS    CORPUS. 

2.  "  Should  a  writ  of  habeas  corpus  issued  by  a  State 
court  or  judge  be  served  upon  an  army  officer,  com- 
manding him  to  produce  an  enlisted  man  or  military 
convict,  and  show  cause  for  his  detention,  the  officer 
will  decline  to  produce  in  court  the  body  of  the  person 
named  in  the  writ,  but  will  make  respectful  return ^  in 
writing  to  the  effect  that  the  man  is  a  duly  enlisted  sol- 
dier of  the  United  States  or  a  military  convict  under 
sentence  of  court-martial,  as  the  case  may  be,  and  that 
the  Supreme  Court  of  the  United  States  has  decided 
that  a  magistrate  or  court  of  a  State  has  no  jurisdiction 
in  such  a  case."- 

3.  No  writ  of  habeas  corpus  shall  be  issued  against  a 
military  officer  or  soldier  who  is  detaining  a  prisoner  in 
any  unorganized  province  or  territory  of  the  Philippine 
Islands.  •■ 

4.  It  shall  be  a  conclusive  answer  to  a  writ  of  habeas 
corpus  against  a  military  officer  or  soldier,  and  a  suffi- 
cient excuse  for  not  producing  the  prisoner  in  all  organ- 
ized provinces  of  the  Philippine  Islands,  if  the  Com- 
manding General  or  any  general  officer  in  command  of 
the  department  or  district  shall  certify  that  the  prisoner 
is  held  by  him  either — 

(1)  As  a  prisoner  of  war; 

(2)  As  a  member  of  the  Army,  a  civilian  employee 

thereof,  or  a  camp  follower  and  subject  to  its 
discipline;  but  this  paragraph  shall  not  apply 
to  pending^  cases;  or 

1  For  form,  see  page  192,  jJo.^^  A  deserter,  apprehended  by  a  civil  officer 
authorized  by  statute  of  the  United  States  to  apprehend  deserters,  is  in  the 
custody  of  the  United  States.  See  U.  S.  v.  Reaves,  126  Fed.  Rep.,  127. 
(Cir.  53,  W.  D.,  1007.) 

2  Par.  1008,  A.  R. 

3  Acts  of  the  Philippine  Commission  of  October  1,  1901,  and  June  23,1902. 
Respectful  return  in  writing  will  be  made  in  the  case  of  i)risoners  who  may 
be  exempted  from  jurisdiction  by  the  provisions  of  the  acts  above  cited, 
stating  the  facts  of  the  case,  but  the  body  of  the  prisoner  will  not  be  pro- 
duced. In  all  other  cases  the  return  will  be  made  and  the  body  produced 
before  the  proper  tribunal. 

1 0ctober  1,  1901. 


DISPOSITION   OF   RECORDS.  75 

(3)  As  a  prisoner  committed  by  a  military  court  or 

commission  prior  to  October  1,  1901:  or 

(4)  As  a  prisoner  arrested  and  held  for  trial  before 

a  military  court  or  commission  before  October 
15, 1901,  for  a  violation  of  the  laws  of  war  com- 
mitted before  the  same  date ;  or 

(5)  As  a  prisoner  guilty  of  violations  of  the  laws  of 

war  committed  in  any  unpacified  province  or 

territory  and  who  has  escaped  into  provinces 

officially  declared  to  be  under  civil  control  and 

has  been  there  captured  by  military  authorities 

and  is  held  for  trial  for  such  violations  of  the 

laws  of  war.^ 

5.  A  writ  of  habeas  corpus  issued  by  a  United  States 

court  or  judge  will  be  promptly  obeyed.     The  person 

alleged  to  be  illegally  restrained  of  his  liberty  will  be 

taken  before  the  court  from  which  the  writ  has  issued, 

and  a  return  ^  made  setting  forth  the  reasons  for  his 

restraint.     The  officer  upon  whom  such  a  writ  is  served 

will  at  once  report  the  fact  of  such  service,  by  telegraph, 

direct  to  The  Adjutant-General  of  the  Army  and  the 

commanding  general  of  the  department. '• 

DISPOSITION^  OF  RECORDS. 

1.  The  Judge-Advocate-General  revises  and  is  the 
custodian  of  the  records  of  the  proceedings  of  all  gen- 
eral courts-martial.^  The  original  records  of  proceed- 
ings, with  the  decisions  and  orders  of  the  reviewing 
authorities  made  thereon,  and  also  the  records  of  pro- 
ceedings of  all  general  courts  which  require  confirma- 

lActs  of  the  Philippine  Commission  of  October  1,  1901,  and  .Tune  23,  1902. 
Respectful  return  in  writing  will  be  made  in  the  case  of  prisoners  wlio  may 
be  exempted  from  jurisdiction  by  the  provisions  of  the  act  above  cited, 
stating  the  facts  of  the  case,  but  the  body  of  the  prisoner  will  not  be  pro- 
duced, lu  all  other  cases  the  return  will  be  made  and  the  body  produced 
before  the  proper  tribunal. 

-  For  form,  see  page  190,  post.  For  brief  of  authorities,  when  the  writ  is 
applied  for  ou  the  ground  of  minority,  see  page  193,  post. 

^'Par.  1009,  A.  K. 

■iSec.  1199,  R.  S.;  jiar.  923,  A.  U. 


76  DISPOSITION   OF   RECORDS. 

tion  by  the  President  but  which  have  not  been  appointed 
by  him,  will  be  forwarded  direct  to  the  Judge- Advocate- 
General.  One  copy  of  the  order  promulgating  the  ac- 
tion of  the  court,  and  a  copy  of  every  subsequent  order 
affecting  the  case,  will  be  forwarded  to  the  Judge- Advo- 
cate-General, for  file  with  the  record  of  each  case.  When 
more  than  one  case  is  embraced  in  a  single  order,  a 
sufficient  number  of  copies  will  be  forwarded  to  enable 
one  to  be  filed  with  each  record.  The  proceedings  of 
all  courts  appointed  by  the  President  will  be  sent  direct 
to  the  Secretary  of  War.^ 

2.  "Applications  of  officers,  enlisted  men,  and  mili- 
tary prisoners  for  copies  of  proceedings  of  general 
courts-martial,  to  be  furnished  them  under  the  one 
hundred  and  fourteenth  Article  of  War,  will,  when 
received  by  post  or  other  commanders,  be  forwarded 
direct  to  the  Judge- Ad vocate-General."- 

3.  "  Communications  relating  to  proceedings  of  mili- 
tary courts  on  file  in  the  Judge-Advocate-General's 
Department  will  be  addressed  and  forwarded  direct  by 
department  commanders  to  the  Judge-Advocate-Gen- 
eral. In  routine  matters  the  Judge-Advocate-General 
and  judge-advocates  may  correspond  with  each  other 
direct. ' '  ^ 

4.  Judge-advocates  of  departments  are  the  custodians 
of  the  reports  of  cases  tried  by  siimmary  courts  ^  and  of 
all  proceedings  of  garrison  or  regimental  courts-martial.'^ 

5.  Post  commanders  will,  on  the  last  day  of  each 
month,  make  a  report  to  the  department  headquarters 
of  the  number  of  cases  determined  by  summary  court 
during  the  month,  setting  forth  the  offenses  committed 
and  the  penalties  awarded.  '^    ' '  The  complete  proceedings 

1  Par.  925,  A.  R. 

^  Id.,  921. 

3  Id.,  928. 

*  Act  of  June  18, 1898,  esttiblishiiig  tlie  summary  court;  see  page  ISO,  pofit. 

5  Act  of  March  3,  1877. 

G  Act  of  June  18,  1898,  sec.  4,  page  130,  post. 


DISPOSITION   OF   RECORDS.  77 

of  a  garrison  or  regimental  court  will  be  transmitted 
without  delay  by  the  post  or  regimental  commander 
to  department  headquarters."  ^ 

6.  The  reports  of  cases  tried  by  summary  courts  and 
the  records  of  garrison  and  other  inferior  courts,  except 
when  convened  at  recruit  depots  and  recruiting  stations 
and  other  places  exempted  from  the  jurisdiction  of  com- 
manders of  territorial  divisions  and  departments  by  par- 
agraph 187,  Army  Regulations,  will  be  filed  in  the  office 
of  the  judge-advocate  at  the  headquarters  of  the  depart- 
ment commander  in  whose  department  the  courts  were 
held  for  two  years,  at  the  end  of  which  time  they  may 
be  destroyed.^  Where  such  courts  were  convened  at  re- 
cruit depots  and.  recruiting  stations  and  other  exempted 
places,  the  reports  and  records  of  such  courts  will  be 
forwarded  direct  to  The  Adjutant-General  of  the  Army. 

1  Par.  991,  A.  R. 
2Actof  March3,  1877. 


INFERIOR  COURTS-MARTIAL. 


THE   SUMMARY  COURT.i 

1.  Composition,  "etc. — The  summary  court  is  com- 
posed of  one  officer,  designated  by  the  commanding 
officer  of  a  garrison,  fort,  or  other  place,  regiment  or 
corps,  detached  battalion  or  company,  or  other  detach- 
ment, for  such  place  or  command,  or  for  each  battalion 
of  a  command.  When  more  than  one  officer  is  present 
with  a  command,  the  commanding  officer  should, not 
designate  himself  as  a  summary  court.  But  the  sum- 
mary court  may  be  appointed  and  the  officer  designated 
by  superior  authority  when  by  him  deemed  desirable. 

2.  When  but  one  commissioned  officer  is  present  with 
a  command,  he  is  a  summary  court  and  finally  deter- 
mines the  cases  tried  by  him.  In  such  case  no  order 
appointing  the  court  will  be  issued,  but  the  officer  will 
enter  on  the  record  that  he  is  the  "  only  officer  present 
with  the  command.'"-  In  all  other  cases  the  sentences 
must,  before  they  can  be  executed,  be  approved  by  the 
officer  appointing  the  court  or  the  officer  commanding 
for  the  time  being. 

3.  The  summary-court  act  does  not  give  the  accused 
the  right  to  object  to  trial  by  summary  court,  except  as 
stated  in  the  next  paragraph,  nor  does  it  require  that 
when  the  trial  officer  is  the  accuser  the  case  shall  be 
tried  by  another  court.  A  summary  court  can  not, 
however,  adjudge  confinement  and  forfeiture  in  excess 
of  a  period  of  one  month,  unless  the  accused  shall  before 
trial  consent  in  writing  to  trial  by  said  court,  but  in 

1  Established  by  act  of  June  18,  1898,  and  recognized  by  the  83d  A.  W. 
See  pages  129  and  132,  i^ost. 
2 Par.  966,  A.  R. 

(78) 


THE   SUMMARY   COURT.  79 

any  case  of  refusal  to  so  consent,  the  trial  may  be  had 
either  by  general,  regimental,  or  garrison  court-martial, 
or  by  said  summary  court,  but  in  case  of  trial  by  said 
summary  court  without  consent  as  aforesaid,  the  court 
shall  not  adjudge  confinement  or  forfeiture  of  pay  for 
more  than  one  month. ^ 

4.  Noncommissioned  officers  can  not,  if  they  object 
thereto,  be  brought  to  trial  before  summary  courts 
without  the  authority  of  the  officer  competent  to  order 
their  trial  by  general  court-martial,  but  shall,  in  such 
cases,  be  brought  to  trial  before  garrison,  regimental, 
or  general  courts -martial,  as  the  case  may  be.- 

5.  Jurisdiction. — The  summary  court  has  jurisdiction 
both  in  time  of  peace  and  of  war. 

6.  As  regards  persons,  the  summary  court  can  not 
legally  try  officers,  cadets,  candidates  for  promotion,  or 
the  civilians  mentioned  in  the  63d  Article  of  War.  As 
to  noncommissioned  officers,  see  paragraph  4,  ante. 
Over  all  other  enlisted  men  and  over  general  prisoners 
the  summary  court  has  jurisdiction. 

7.  As  regards  time  of  trial,  the  jurisdiction  of  a  sum- 
mary court  is  not  affected  by  the  time  when  cases  are 
brought  before  it,  the  requirement  of  the  law  as  to  time 
being  directory  only.  The  commanding  officer,  and  not 
the  court,  will  determine  when  and  what  cases  will  be 
brought  before  it.  Delay  in  the  trial  of  a  soldier  does 
not  invalidate  the  proceedings,  but  may  be  considered 
by  the  court  in  awarding  sentence.^ 

8.  Power.— Summary  courts  have  power  to  adminis- 
ter oaths ;^   to  hear  and  determine  cases;  and,  when 

183d  A.  W.,  as  amended  by  act  approved  March  2,  liiOl,  page  132,  post. 

2  Summary  Court  Act,  page  130,  post. 

3 Par.  968,  A.  R. 

4 This  refers  to  oaths  of  witnesses.  The  trial  officer  himself  is  not  sworn. 
The  trial  officers  of  summary  courts,  judge-advocates  of  courts-martial,  and 
judge-advocates  of  departments  have  power  to  administer  oaths  for  pui-poses 
of  military  justice  and  for  other  purposes  of  military  administration.  (See 
act  of  July  27,  1892,  page  121,  post.)  A  summary  court  is  not  empowered  to 
issue  process  of  attachment  to  compel  the  attendance  of  a  civilian  witness. 


80  THE    SUMMARY    COURT. 

satisfied  of  the  guilt  of  an  accused  party,  to  adjudge  the 
punishment  to  be  inflicted.^ 

9.  Procedure. — The  accused  will  be  arraigned  and 
allowed  to  plead,  according  to  court-martial  practice. 
When  the  accused  pleads  not  guilty,  witnesses  will  be 
sworn  and  evidence  received,  the  accused  being  per- 
mitted to  testify  in  his  own  behalf  and  make  a  state- 
ment, but  the  evidence  and  statement  will  not  be 
recorded. 

10.  The  summary  court,  as  soon  as  trial  is  concluded, 
will  record  its  findings  and  sentence  ^  in  the  summary 
court  record  and  submit  it  to  the  officer  appointing  the 
court,  who  will  record  thereon  his  approval  or  disap- 
proval, in  part  or  in  whole,  with  date  and  signature. 
Should  the  only  officer  present  with  the  command  sit 
as  summary  court,  the  findings  and  sentence  will  be 
recorded  in  like  manner.^  No  other  records  of  the  pro- 
ceedings will  be  kept,  and  such  trials  will  not  be  pub- 
lished in  orders. 

11.  Previous  Convictions.— Charges  submitted  for 
trial  by  a  summary  court  will  be  accompanied  by  the 
certified  copies  of  previous  convictions  on  file  with  the 
company  records,  which  copies  will  be  returned  to  the 
company  records  immediately  after  trial.  If  this  evi- 
dence is  not  submitted,  the  summary  court  may  take 
judicial  notice  of  any  such  evidence  which  that  record 
contains.  If  the  charges  be  referred  to  a  garrison  or 
regimental  court-martial,  the  copies  of  previous  con- 
victions will  accompany  them,  but  will  be  returned  to 
the  company  records  immediately  after  trial. ^ 

12.  Whenever,  in  determining  on  its  sentence,  a  sum- 
mary court    shall    take    into    consideration    previous 

1  Act  of  June  18,  1898;  see  page  129,  post;  and  83d  A.  W.,  as  amended  by 
act  approved  March  2,  1901,  page  132,  post. 
-  For  forms  for  sentences,  see  page  170,  pout. 

3  See  page  161,  jjosA. 

4  Par.  9(54,  A.  11.,  and  "Instructions"  on  Summary  Couit  Kecord,  page 

^^.o,iH>.s^ 


THE    SUMMARY    COURT.  81 

convictions,   a  note  of  the  number  of  sticli  previous 
convictions  will  be  made  on  the  summary  court  record. 

13.  Limit  of  Punishing  Power.— Summary  courts  are 
subject  to  the  restrictions  of  the  83d  Article  of  War, 

Under  this .  article  inferior  courts-martial  "have 
power  to  award  punishment  not  to  exceed  confinement 
at  hard  labor  for  three  months  or  forfeiture  of  three 
months'  pay,  or  both,  and  in  addition  thereto,  in  the 
case  of  noncommissioned  officers,  reduction  to  the 
ranks,  and  in  the  case  of  first-class  privates  reduction 
to  second-class  privates:  Provided,  That  a  summary 
court  shall  not  adjudge  confinement  and  forfeiture  in 
excess  of  a  period  of  one  month  unless  the  accused  shall 
before  trial  consent-  in  writing  to  trial  by  said  court, 
but  in  any  case  of  refusal  to  so  consent  the  trial  may 
be  had  either  by  general,  regimental,  or  garrison  court- 
martial,  or  by  said  summary  court,  but  in  case  of  trial 
by  said  summary  court  without  consent  as  aforesaid, 
the  court  shall  not  adjudge  confinement  or  forfeiture 
of  pay  for  more  than  one  month."  This  is  the  limit  of 
their  punishing  poiL'er .  For  those  offenses  for  which  a 
limit  of  punishment  has  been  prescribed,  a  summary 
court  is  restricted  to  the  kinda  of  punishment  named, 
except  as  to  the  substitutions  in  the  settled  ratio  given 
on  page  60,  ante. 

14.  Record. — "There  shall  be  a  summary  court  rec- 
ord kept  at  each  military  post,  and  in  the  field  at  the 
headquarters  of  the  proper  command,  in  which  shall  be 
entered  a  record  of  all  cases  heard  and  determined  and 
the  action  had  thereon."  ^ 

15.  Clemency. — The  commanding  officers  authorized 
to  approve  the  sentences  of  summary  courts  and  supe- 
rior authority  have  power  to  remit  or  mitigate  the 
same.  2 


1  Act  of  June  1«,  ISitS;  see  page  130,  jjost.     For  form  for  record,  see  page 
159,  post. 
^Id.,  sec.  3,  page  l'.iO,post. 

50963 6 


82  THE    SUMTVIARY    COURT. 

16.  "When  the  only  officer  present  with  a  command 
sits  as  a  summary  court,  no  approval  of  the  sentence  is 
required  by  law,  but  he  should  sign  the  sentence  as 
such  officer  and  date  his  signature."  ^ 

17.  Instructions  for  Post  and  Other  Commanders, 
relating  to  Summary  Courts. — Charges  for  offenses 
cognizable  by  inferior  courts  will  be  laid  before  the 
proper  commander,  who,  if  he  thinks  the  accused 
should  be  tried,  will  cause  him  to  be  brought  before 
the  summary  court '-^  or  garrison  or  regimental  court- 
martial.  Before  referring  to  summary  courts  charges 
for  which  the  maximum  limit  of  punishment  that  may 
be  awarded  is  greater  than  one  month's  forfeiture  and 
confinement,  commanding  officers  will  cause  the  ac- 
cused to  sign  a  statement  on  the  original  charges  as  to 
whether  or  not  he  consents  to  trial  by  summary  court, 
which  statement,  along  with  the  charges,  becomes  a 
part  of  the  summary  court  record.  A  note  of  this  state- 
ment in  each  case  will  also  be  entered  on  the  monthly 
report  of  trials  by  such  court. ^ 

18.  "Commanding  officers  are  not  required  to  bring 
every  dereliction  of  duty  before  a  court  for  trial,  but 
will  endeavor  to  prevent  their  recurrence  by  admoni- 
tions, withholding  of  privileges,  and  taking  such  steps 
as  may  be  necessary  to  enforce  their  orders."'^  In 
accordance  with  the  spirit  of  the  foregoing,  company 
commanders  are  authorized,  subject  to  the  control  of 
the  commanding  officer  of  the  post,  to  dispose  of  cases 
of  derelictions  of  duty  in  their  commands  which  would 
be  within  the  jurisdiction  of  inferior  courts-martial  by 
requiring  extra  tours  of  fatigue,  unless  the  soldier  con- 
cerned demands  a  trial.  This  right  to  demand  a  trial 
must  be  made  known  to  him.^ 

19.  "  The  summary  court  will  be  opened  at  a  stated 
hour  every  day  except  Sunday,*^  for  the  trial  of  such 

»  Par.  966,  A.  R.  ^Td.,  965. 

3  Id.,  963.     Sec  forms,  pages  159  and  161,  post.         *Td.,  961, 

6  Id  ,  and  Cir.  No.  5,  A.  G.  0.,  March  14,  1898. 

cjf  it  be  understood  that  tlie  court  shall  not  sit  on  Sunday,  the  officer 
charged  with  the  duty  of  bringing  offenders  before  it  will  comply  with  his 
duty  by  doing  so  at  the  first  session  of  the  court  thereafter. 


THE   GARRISON   COURT-MARTIAL.  83 

cases  as  may  properly  be  brought  before  it.  Trials 
will  be  had  on  Sunday  only  when  the  exigencies  of  the 
service  make  it  necessary."  ^ 

20.  Commanding  officers  will  furnish  company  and 
other  commanders  with  copies  of  the  summary  court 
record  relating  to  men  of  their  commands,  said  copies  to 
be  certified  to  be  true  copies  by  the  commanding  officer 
or  adjutant.' 

21.  The  name  of  each  officer  at  a  post  who  has  acted 
as  a  summary  court  will  be  reported  on  the  post  return 
with  dates. 

THE  GARRISOX  COURT-MARTIAL. 

1.  Composition. — A  garrison  court-martial  is  com' 
posed  of  three  members ''  and  a  judge-advocate.  The^ 
remarks  regarding  the  eligibility  of  officers  for  court- 
martial  duty,  on  page  11,  paragraphs  1-3,  ante,  apply 
to  garrison  courts. 

2.  Constitution. — Every  officer  commanding  a  garri- 
son, fort,  or  other  place  where  the  troops  consist  of  dif- 
ferent corps  may  appoint  garrison  courts.^  The  term 
' '  other  place ' '  includes  any  locality  whatever  where  the 
command  may  be,  whether  in  garrison  or  in  the  field. 
To  fulfill  the  requirement  regarding  "  different  corps," 
it  is  sufficient  if  there  be  on  duty  in  the  command  a 
single  officer  or  soldier  of  another  arm  of  service  than 
that  of  which  the  main  body  is  composed. 

3.  Jurisdiction,  etc.— The  summary  court  act  has 
expressly  abolished  the  field  officer's  court,  and  has 
practically  substituted  the  summary  court  for  the  gar- 
rison and  regimental  courts-martial,  both  in  time  of 
peace  and  war,  subject  to  the  provisions  that  noncom- 
missioned officers  shall  not,  if  they  object  thereto,  be 
brought  to  trial  before  summary  courts  without  the 
authority  of  the  officer  competent  to  order  their  trial 
by  general  court-martial,  but   shall  in  such  cases  be 

1  Par.  968,  A.  R.  2  u.,  965.  3  82d  A.  W.  ^Id. 


84  THE   GARRISON   COURT-MARTIAL. 

brought  to  trial  before  garrison,  regimental,  or  general 
courts-martial,  as  the  case  may  be ;  ^  and  the  83d  Article 
of  War  provides  that  a  summary  court  shall  not  adjudge 
confinement  and  forfeiture  in  excess  of  a  period  of  one 
month  unless  the  accused  shall  before  trial  consent  in 
writing  to  trial  by  said  court,  but  in  any  case  of  refusal 
to  so  consent  the  trial  may  be  had  either  by  general, 
regimental,  or  garrison  court-martial. 

4.  The  garrison  court-martial  can  not  try  capital 
cases,  nor  commissioned  officers,  cadets,  or  candidates 
for  promotion;  but  it  has  jurisdiction  over  all  other 
enlisted  men,-  military  convicts,  and,  in  time  of  war, 
over  the  persons  described  in  the  63d  Article  of  War. 

5.  A  garrison  court-martial  may  be  convened  under 
the  following  circumstances: 

(a)  Where  the  accused,  not  being  an  enlisted  man  or 
a  military  convict,  is  not  subject  to  the  jurisdiction  of 
a  summary  court,  although  he  is  subject  to  the  jurisdic- 
tion of  other  inferior  courts-martial. 

(b)  In  case  the  accused,  before  trial,  refuses  to  con- 
sent in  writing  to  trial  by  summary  court,  the  case 
being  one  which  a  summary  court  can  not,  under  these 
circumstances,  adequately  punish. 

(c)  When  the  accused,  being  a  noncommissioned  offi- 
cer, objects  to  trial  by  summary  court. 

6.  Whenever  under  the  summary  court  act  or  the 
8Sd  Article  of  War  it  becomes  necessary  to  convene  a 
garrison  or  regimental  court,  the  order  appointing  it 
will  state  the  facts  which  bring  the  cases  to  be  tried 
within  the  exceptions  of  those  laws.  ^ 

7.  The  general  remarks  heretofore  made  regarding 
the  president,  members,  judge-advocate,  organization, 
order  of  procedure,^  etc. ,  of  courts-martial  apply  to  gar- 
rison courts,  except  when  the  general  court  is  specifi- 
cally mentioned. 

1  Act  of  June  18,  1898;  see  page  130,^)o.s<. 

2  But  see  par.  967,  A.  R.,  as  to  noncommissioned  officers. 

3  Par.  969,  A.  II.     For  form  for  order  and  record,  see  page  162,  post. 

*  Testimony  taken  before  a  garrison  or  regimental  court-martial  will  no 
be  reduced  to  writing.     (l*ur.  988,  A.  R. ) 


THE   REGIMENTAL    COURT-MARTIAL.  85 

THE    REGIMENTAL    COURT-MARTIAL.' 

1.  Composition.— The  regimental,  like  the  garrison 
court-martial,  is  composed  of  three  members  and  a 
judge-advocate;  but  in  case  of  the  regimental  court 
only  officers  of  the  offender's  regiment  or  corps  are 
eligible  for  detail  on  the  court.- 

2.  Constitution. — Every  officer  commanding  a  regi- 
ment or  corps  may  appoint  a  regimental  court-martial. - 
The  word  "corps"  includes  the  Corps  of  Engineers, 
the  Ordnance,  and  the  Signal  Corps. 

3.  Jurisdiction.— With  the  exception  that  the  regi- 
mental court-martial  has  jurisdiction  only  over  offend- 
ers belonging  to  the  regiment  or  corps  from  which  the 
court  is  composed,  and  over  civilians  attached  thereto, 
as  contemplated  in  the  63d  Article  of  War,  what  has 
been  said  of  the  jurisdiction,  punishing  power,  and  pro- 
cedure of  garrison  courts  applies  equally  to  regimental 
courts.^ 

The  regimental  court-martial  also  has  the  jurisdiction 
conferred  upon  it  by  the  30th  Article  of  War.^ 

1  See  page  108,  post,  note. 

2  81st  A.  W. 

SKegarding  order  for  regimental  court,  see  par.  969,  A.  H.;  and  for  form 
for  record,  see  page  165,  post. 


COURTS  OF  INQUIRY. 


1.  Constitution. — A  court  of  inquiry  may  be  ordered, 
that  is,  convened,  by  the  President  or  by  any  command- 
ing oflScer,  but  shall  never  be  ordered  by  a  commanding 
officer  except  upon  a  demand  by  the  officer  or  soldier 
whose  conduct  is  to  be  inquired  of.^ 

2.  There  is  no  statutory  restriction  to  the  meaning  of 
the  term  "  commanding  officer,"  consequently  any  com- 
mander of  the  officer  or  soldier  who  makes  the  request 
would  have  authority  to  convene  the  court,  but  if  the 
charge  to  be  inquired  into  is  beyond  the  jurisdiction  of 
a  court-martial  which  such  commander  can  convene, 
he  would  not,  by  analogies  of  the  service  in  the  admin- 
istration  of  military  justice,  be  the  proper  convening 
authority  in  such  case.  It  is  the  offense  charged  which 
should  give  the  jurisdiction  to  convene  and  not  the  status 
of  the  party  in  service.'^ 

3.  Jurisdiction. — A  court  of  inquiry  is  convened  to 
examine  into  the  nature  of  any  transaction  of,  or  accusa- 
tion or  imputation  against,  any  officer  or  soldier,^  and 
the  inquiry  is  confined  to  those  actually  in  the  service.^ 
It  will  not  give  an  opinion  on  the  merits  of  the  case 
inquired  of  unless  specially  ordered  to.  do  so.^  The 
opinion  may  not  be  unanimous  and  a  dissenting  opinion 
is  therefore  authorized.  The  court  is  not  barred  by  any 
statute  of  limitation  in  its  investigation,'* 

1 115th  A.  w. 

2  0pin.  J.  A.  G.,  approved  by  Secretary  of  War,  September  19,  1874. 

3115th  A.  W. 

^Digest  Opin.  J.  A.  G.,  §  366. 

s  119th  A.  W. 

61)igest  Opiu.  J.  A.  G.,  §  318. 

(86) 


COURTS    OF   INQUIRY.  87 

4.  Composition.—  "A  court  of  inquiry  shall  consist  of 
one  or  more  officers,  not  exceeding  three,  and  a  recorder, 
to  reduce  the  proceedings  and  evidence  to  writing."  ' 

5.  The  form  of  the  convening  order  is  similar  to  that 
for  a  court-martial.  It  details  the  members  and  recorder 
by  name,  and  specifies  the  subject-matter  of  inquiry,  and 
directs  a  report  of  the  facts  only,  or  of  the  facts  with 
an  opinion. 

6.  Where  the  court  is  composed  of  two  or  more  mem- 
bers and  the  number  is  reduced  by  casualty  or  challenge, 
the  court  may  proceed  with  the  reduced  number,  but  the 
convening  authority  should  be  notified,  as  a  new  mem- 
ber may  be  detailed  and  take  his  seat  during  the  inquiry. 

?.  Organization. — It  is  the  custom  of  the  service  to 
allow  the  same  right  of  challenge  of  members  as  in 
courts-martial. 

8.  The  oath  of  the  members  of  the  court  is  adminis- 
tered by  the  recorder  and  that  of  the  recorder  by  the 
president  of  the  court.  The  oaths  are  those  prescribed 
by  the  117th  Article  of  War. 

9.  A  reporter  for  a  court  of  inquiry  is  allowed  to  be 
paid  under  current  appropriation  acts  for  the  support  of 
the  army.  The  employment  and  rate  of  compensation  is 
in  the  discretion  of  the  Secretary  of  War  only.  Reporters 
are  usually  paid  at  the  rates  fixed  by  army  regulations 
for  those  of  general  courts-martial. 

10.  Procedure. — A  court  of  inquiry  is  governed  by  the 
general  principles  of  military  law,  applying  the  analo- 
gies of  a  court-martial  where  they  are  applicable,  and 
recurring  to  adjudged  cases,  precedents,  rules,  authori- 
tative legal  opinions  and  approved  books  of  legal  expo- 
sition, where  there  is  no  pertinent  paramount  stated 
rule.- 

11 .  "A  court  of  inquiry,  and  the  recorder  thereof,  have 
the  same  power  to  summon  and  examine  witnesses  as  is 
given  to  courts-martial  and  the  judge-advocates  thereof. 
Such  witnesses  shall  take  the  same  oath  which  is  taken 

1 116th  A.  W,  •-  8  Opin.  Atty.  Geu.,  34G. 


88  COURTS    OF   INQUIRY. 

by  witnesses  before  courts-martial,  and  the  party  ac- 
cused shall  be  permitted  to  examine  and  cross-examine 
them,  so  as  fully  to  investigate  the  circumstances  in 
question."^ 

12.  The  examination  of  witnesses  may  be  by  the  court, 
by  a  member  thereof,  or  by  the  recorder,  in  the  discre- 
tion of  the  court. "  The  recorder  is  not  an  adviser  of 
the  court,  nor  a  prosecutor  before  it,  but  must  assist  the 
court,  if  it  so  desires,  in  all  matters  leading  to  correct 
conclusions  of  fact  and  law. 

13.  The  court  must  give  its  conclusions  as  to  the  facts 
as  a  finding,  and,  when  ordered,  give  an  opinion  on  the 
merits  of  the  case. 

14.  "The  proceedings  of  a  court  of  inquiry  must  be 
authenticated  by  the  signatures  of  the  recorder  and  the 
president  thereof,  and  delivered  to  the  commanding 
ofScer."'^  The  form  for  the  record  of  a  general  court- 
martial  should  be  followed  in  making  up  the  record  of 
the  court. 

1 118th  A.  W.  2  I20tb  id. 


RETIRING  BOARDS. 


1.  Constitution  and  Composition. — "The  Secretary 
of  War,  under  the  direction  of  the  President,  shall,  from 
time  to  time,  assemble  an  Army  retiring  board, ^  con- 
sisting of  not  more  than  nine  nor  less  than  five  officers, 
two-fifths  of  whom  shall  be  selected  from  the  Medical 
Corps.  The  board,  excepting  the  officers  selected  from 
the  Medical  Corps,  shall  be  composed,  as  far  as  may  be, 
of  seniors  in  rank  to  the  officer  whose  disability  is  in- 
quired of. ' '  '^ 

2.  The  provision  of  the  statute  as  to  the  rank  of  the 
members  is  directory  only,  and  the  decision  of  the  con- 
vening authority,  as  evidenced  by  the  selection  of  the 
members  of  the  board,  is  conclusive. 

3.  Retiring  boards  are  convened  by  the  Secretary  of 
War,  who,  in  the  absence  of  any  statutory  authority, 
under  the  custom  of  the  service,  appoints  a  recorder. 
The  recorder  is  not  charged  with  any  specific  function 
other  than  to  record  the  proceedings  of  the  board.  He 
will,  however,  carry  out  such  instructions  as  may  be 
given  him  by  the  board  and  may  be  required  by  the 
latter  to  collect  evidence,  present  it  to  the  board,  exam- 
ine the  witnesses  and,  generally  speaking,  conduct  the 
case  for  the  Government. 

A  stenographic  reporter  for  a  retiring  board  can  only 
be  employed  on  the  authority  of  the  Secretary  of  War 
obtained  in  advance  of  the  employment.  The  authority 
must  be  filed  with  the  voucher  on  which  payment  is 
made.     The  form  of  voucher  used  will  be  that  provided 

1  For  procedure  as  to  retirement  on  examination  for  promotion  see  page 
97,  and  for  form  for  record  of  retiring  board  see  page  166,  post. 

2  Sec.  1246,  K.  S. 

(89) 


90  RETIRING  BOARDS. 

for  the  payment  of  reporters  for  general  courts-martial 
with  the  necessary  changes  in  the  wording  of  the  form.^ 

4.  Right  to  a  Hearing. — "  Except  in  cases  where  an 
officer  may  be  retired  by  the  President  upon  his  own 
application,  or  by  reason  of  his  having  served  forty-five 
years,  or  of  his  being  sixty-two  years  old,  no  officer  shall 
be  retired  from  active  service,  nor  shall  an  officer,  in 
any  case,  be  wholly  retired  from  the  service,  without  a 
full  and  fair  hearing  before  an  Army  retiring  board,  if, 
upon  due  summons,  he  demands  it."  '^ 

5.  This  entitles  an  officer  subject  to  be  thus  retired,  to 
appear  before  the  board,  with  counsel  if  desired,  and  to 
introduce  testimony  of  his  own,  and  to  cross-examine 
the  witnesses  examined  by  the  board,  including  the 
medical  members  of  the  board  who  may  have  taken 
part  in  the  medical  examination  and  have  stated  or  re- 
ported to  the  board  the  result  of  the  same.  If  the  officer 
does  not  elect  to  appear  before  the  board  when  sum- 
moned, he  waives  the  right  to  a  hearing,  and  can  not 
properly  take  exception  to  a  conclusion  arrived  at  in 
his  absence.^ 

6.  Section  1253,  Revised  Statutes,  does  not  authorize 
the  President  to  send  a  case  back  to  a  retiring  board 
after  he  has  once  approved  and  acted  upon  its  report; 
such  approval  and  action  determines  that  the  officer 
has  had  "  a  full  and  fair  hearing."-' 

1  For  form  of  voucher  see  page  186,  post. 

2  Sec.  1253,  R.  S.;  sec.  17,  act  August  13,  1861. 
«  Digest  Opin.  J.  A.  G.,  §  2197. 

4  Miller's  Case,  19  Ct.  Cls.,  338;  McBlair's  case,  id.,  528.  In  both  of  these 
cases  the  officers  had  been  wholly  retired,  and  their  successors  had  been 
appointed  and  confirmed. 

Attorney  General  Devens  held  where  a  naval  officer  having  appeared 
before  an  examining  board  (organized  under  sees.  1493-1505,  R.  S.),  and, 
the  examination  being  temporarily  suspended,  was  granted  permission  to 
go  home  and  to  be  absent  until  notified  by  the  board  to  appear,  and  he 
failed  to  receive  this  notice  until  after  the  examination,  which  was  re- 
sumed during  his  absence,  had  been  concluded,  and  the  proceedings  and 
findings  of  the  board  were  approved  by  the  President  and  his  order  in  the 
case  duly  executed  by  the  retirement  of  the  officer  (under  sec.  1447,  K.  S.), 
but  the  vacancy  created  by  such  retirement  remained  unfilled,  and  no  rights 
of  any  other  person  had  intervened,  that  the  action  of  the  Tiesident  could 
be  revoked  and  the  officer  allowed  a  hearing.     (10  Opin.,  2U.) 


RETIRING   BOARDS.  91 

7.  Challenge.— The  statutory  right  to  a  "  fair  hear- 
ing" includes  the  right  to  a  hearing  by  an  impartial 
board,  and  therefore  the  right  to  challenge  for  cause. 

8.  Oaths.— The  members  of  a  retiring  board  "  shall  be 
sworn  in  every  case  to  discharge  their  duties  honestly 
and  impartially.'"'  The  oath  is  administered  by  the 
recorder. 

The  following  form  of  oath  complies  with  the  statute: 
"  You  [naming  the  members]  do  swear  that  you  will 
honestly  and  impartially  discharge  your  duties  as  mem- 
bers of  this  board  in  the  matter  now  before  you.     So 
help  you  God." 

9.  The  presiding  officer  of  the  board  administers  the 
following  oath  to  the  recorder: 

"You  [naming  him]  do  swear  that  you  will,  accord- 
ing to  your  best  ability,  accurately  and  impartially 
record  the  proceedings  of  the  board  and  the  evidence  to 
be  given  in  the  case  in  hearing.     So  help  you  God." 

10.  Powers. — A  retiring  board  may  inquire  into  and 
determine  the  facts  touching  the  nature  and  occasion  of 
the  disability  of  any  officer  who  appears  to  be  incapable 
of  performing  the  duties  of  his  office,  and  shall  have 
such  powers  of  a  court-martial  and  of  a  court  of  inquiry 
as  may  be  necessary  for  that  purpose.  "In  the  execu- 
tion of  the  duty  thus  imposed  by  law,  the  board  is  re- 
quired to  ascertain  the  nature  and  extent  of  the  dis- 
ability and  its  character  and  effect,  as  temporary  or 
permanent.  The  evidence  upon  which  to  base  its  find- 
ings in  this  regard  should  be  derived  chiefly  but  not 
exclusively  from  the  report  of  the  medical  officers  and 
from  the  authenticated  extracts  from  the  departmental 
records  which  show  the  cases  in  which  the  officer  has 
received  medical  or  surgical  treatment  during  his  con- 
nection with  the  military  service.""^ 

11.  The  investigation  of  a  retiring  board  is  not  re- 
stricted by  any  statute  of  limitation.     It  may  inquire 

iSec.  1247,  K.  S.  "-  Cir.,  W.  D.,  Feb.  27,  1904. 


92  RETIRING    BOARDS. 

into  the  matter  of  a  disability,  however  long  since  it 
may  have  originated.^ 

12.  "The  provision  (of  section  1248,  Revised  Statutes) 
that  the  board  '  shall  have  such  powers  of  a  court- 
martial  and  of  a  court  of  inquiry  as  may  be  necessary,' 
etc.,  is  indefinite,  but  has  given  rise  to  but  little  ques- 
tion in  practice.  Construing  it  in  connection  with  the 
other  provisions  cited,  its  evident  intention  is  seen  to 
be  that  the  board  shall  have  and  exercise  such  powers 
of  a  '  court '  as  may  be  requisite  to  insure  a  full  inves- 
tigation, to  afford  a  fair  hearing,  and  to  enable  it  satis- 
factorily to  determine  the  questions  referred.  Thus  it 
is  properly  authorized  and  empowered  to  call  for  and 
entertain  such  testimony  of  witnesses,  depositions,  docu- 
ments, or  papers,  as  may  be  material  to  establish  or 
illustrate  the  nature  or  extent  of  the  disability,  to  pass 
upon  questions  of  admissibility  of  evidence,  to  grant 
continuances,  to  give  the  officer  ordered  before  it  a  rea- 
sonable opportunity  of  defense  if  desired,  to  find  and 
report  in  his  absence  if  he  fail  to  appear;  and  further  to 
determine  the  relevancy  and  validity  of  challenges  to 
its  members  and  punish  acts  in  the  nature  of  contempt, 
according  to  Arts.  86  and  88  (A.  W.),  if  necessary  to  an 
impartial  and  complete  inquiry.  But  the  board  can  not 
entertain  a  charge  of  a  military  offense  as  such,  nor 
assume  to  try.  The  disability  which  it  is  to  inquire  into 
is  an  existing  physical  or  mental  incapacity,  not  a  moral 
defect  or  a  criminal  amenability.  If  the  case  be  one 
calling  for  trial  and  punishment,  it  should  be  referred 
to  a  court-martial."' 

13.  "The  board  having  established  the  fact  of  inca- 
pacity for  active  service  must  seek  the  cause  of  such 
incapacity  and  determine  whether  the  cause  so  ascer- 
tained is  an  incident  of  service;  that  is,  a  thing  which 
inseparably  belongs  to,  is  connected  with,  or  inheres  in 
the  military  service.  Battles,  marches,  the  perform- 
ance of  the  several  duties  in  garrison  or  in  the  field  which 

1  Digest  Opin.  J.  A.  G.,  §  2193. 

2  Wiuthrop's  Military  Law  and  Precedents,  page  765;  Digest  Opin.  J.  A. 
G.,  §  2192. 


RETIRING    BOARDS.  93 

are  imposed  upon  officers  of  the  line  or  staff  by  law, 
regulations,  the  lawful  orders  of  competent  military- 
superiors,  by  an  established  custom,  or  by  the  exigen- 
cies or  necessities  of  the  military  service;  all  these  make 
up  and  constitute  the  '  incidents  of  service,' one  or  more 
of  which  must  be  ascertained  by  the  board  as  the  deter- 
mining cause  of  an  incapacitating  disability.  If  the 
disabling  cause  be  a  wound  or  injury,  the  wound  or  in- 
jury must  have  resulted  from  an  incident  of  the  service; 
if  it  be  a  disease,  the  disease  must  have  been  the  result 
of  an  incident  or  a  succession  or  aggregation  of  incidents 
of  the  service;  in  other  words,  the  board  must  pass  from 
the  disability  to  the  occasion  or  circumstance  of  which 
it  is  the  direct  result,  and  that  occasion  or  circumstance 
must  be  a  thing  so  inseparably  associated  with  the  mili- 
tary service,  so  directly  connected  with  it  and  growing 
out  of  it  as  to  entitle  it  to  be  regarded  as  an  incident  of 
the  service. 

"If  an  officer  participates  in  military  operations,  or 
serves  in  a  locality  where  the  climatic  or  other  causes 
are  such  as  to  induce  a  particular  form  of  disease,  and 
having  taken  due  and  reasonable  precautions  to  prevent 
it  contracts  such  disease,  then  if  disability  results  its 
cause  would  properly  be  regarded  as  an  incident  of  serv- 
ice within  the  meaning  of  the  statute.  But  when  a 
disease  is  contracted,  not  due  to  exposure  or  to  the  exist- 
ence of  conditions  such  as  have  been  described,  the  board 
will  require  the  production  of  testimony  showing  that 
it  is  not  due  to  vicious  or  irregular  habits,  and  that  there 
has  been  neither  carelessness  nor  contributory  negli- 
gence on  the  part  of  the  officer,  who  is  bound  as  a  pru- 
dent man  and  a  conscientious  public  officer  to  use  every 
proper  means  at  his  command  to  preserve  his  health  and 
to  maintain  his  physical  efficiency  under  all  conditions 
of  service."^ 

14.  When  the  retirement  is  desired  by  the  officer  be- 
fore the  board,  it  is  proper,  at  the  beginning  of  the  hear- 
ing, for  him  to  state  under  oath  the  nature  and  cause  of 

iCir.,  W,  D.,  Feb.  27   1904. 


94  RETIRING    BOARDS. 

his  disability,  the  recorder  or  board  asking  such  ques- 
tions as  will  help  to  bring  out  the  facts.  He  may  also 
be  interrogated  as  to  his  military  history,  if  it  be  deemed 
desirable  to  do  so.  When  the  retirement  is  opposed  by 
him,  he  can  not  be  required  to  testify  against  himself. 

15.  The  senior  medical  officer  of  the  board  is  the  next 
witness.  He  is  called  on  to  submit  the  result  {reduced 
to  writing  and  signed  by  the  medical  officers)  of  the 
medical  examination  of  the  officer  before  the  board,  and 
is  interrogated  as  to  the  cause  and  permanency  of  the 
disability  and  the  degree  of  incapacity  for  active  service. 
The  other  medical  officer  or  officers  (if  there  be  more 
than  two)  are  similarly  examined.  Whether  the  disa- 
bility is  an  incident  of  service,^  is  a  question  for  the 
board  to  determine  on  the  facts. 

16.  The  recorder  then  submits  the  documentary  evi- 
dence which  hs  has  received  from  The  Adjutant- G-en- 
eral's  Office.  It  is  not  the  practice  of  retiring  boards  to 
verify  the  correctness  of  these  records  under  oath.  Other 
evidence  may  then  be  introduced.  The  officer  before 
the  board  has  the  right,  as  above  stated,  to  object  to 
improper  evidence  and  to  interrogate  the  witnesses,  and 
may  himself  introduce  evidence,  if  legal,  material,  and 
relevant,  and  may  submit  a  statement  in  writing,  if  he 
desires  to  do  so. 

17.  Finding. — "  When  the  board  finds  an  officer  inca- 
pacitated for  active  service,  it  shall  also  find  and  report 
the  cause '^  which,  in  its  judgment,  has  produced  his 

1  As  to  what  "incident  to  the  service"  means,  see  also  page  97,  post, 
note  3. 

-  It  has  been  held  that  the  "cause"  of  "incapacity"  intended  in  section 
1249,  Revised  Statutes,  is  a  physical  cause;  that  moral  obliquity  was  not  had 
in  view;  and  that  the  matter  of  the  financial  integrity  of  the  oflicer  was 
beyond  the  jurisdiction  of  the  board.  So,  held  that  the  board  was  not 
authorized  to  recommend  the  retirement  of  an  officer  because  he  did  not 
pay  his  debts.  Held  also  that  the  inability  of  a  disbursing  officer  to  furnish 
a  bond  when  duly  required  to  do  so  was  not  sufficient  ground  for  his  retire- 
ment.    (Digest  Opin.  J.  A.  G.,  §  2203.) 

Held  that  the  law — sections  1248  and  1249,  Revised  Statutes — contemplated 
an  existing  aTid  not  a  purely  prospective  and  contingent  incapacity;  and 
that  an  inquiry  into  an  officer's  general  efficiency  could  be  pertinent  only 
in  so  far  as  it  could  be  regarded  as  going  to  show  that  his  inetliciency,  if 
found   was  the  result  of  an  iropuirment  o*  health.     {Id.,  §  2204.) 


RETIRING   BOARDS.  95 

incapacity,  and  whether  such  cause  is  an  incident  of 
service." ^ 

18.  The  board  is  closed  for  deliberation  and  deter- 
mines whether  the  officer  before  it  for  examination  is 
incapacitated  for  active  service  or  not.  (It  is  not  neces- 
sary that  the  recorder  retire. )  When  it  finds  the  officer 
incapacitated  for  active  service,  it  must  also  find  and 
report  the  cause  which,  in  its  judgment,  has  produced 
the  incapacity,  and  whether  such  cause  is  an  incident 
of  service.^  The  board  may  modify  its  findings  ana 
decision  at  any  time  before  forwarding  its  record  of 
proceedings.     The  finding  should  be  framed  in  narrative 

■  form,  and  should  not  embrace  any  recommendation. 

19.  Action  on  Finding. — "  The  proceedings  and  deci- 
sion of  the  board  shall  be  transmitted  to  the  Secretary  of 
War,  and  shall  be  laid  by  him  before  the  President  for 
his  approval  or  disapproval  and  orders  in  the  case."  '^ 

20.  In  any  case  in  which,  in  the  President's  judgment, 
the  investigation  has  not  been  complete,  "  or  the  finding 
is  not  justified  by  the  facts,  he  may,  before  acting  there- 
on, return  the  proceedings  to  the  board  for  a  further 
inquiry  or  hearing,  or  a  correction  of  its  conclusions,  as- 
in  a  case  of  a  court-martial.  But  not  being  a  court,  and 
the  inquiry  not  being  a  triaJ,  the  board,  upon  such 
revision,  may,  and  should  if  so  directed,  reexamine 
former  witnesses  or  take  new  testimony. 

21.  "It  is  now  fully  settled  that  where  the  President 
has  finally  approved  the  finding  of  a  retiring  board,  and 
has  acted  thereupon  by  making  his  order  retiring  the 
officer  in  one  of  the  forms  authorized  by  the  statute,  his 
power  is  exhausted.  He  can  not  then  reopen  the  case, 
nor,  though  the  order  made  was  mistaken  or  unjust,  can 
he  revoke  it  and  substitute  another  otherwise  retiring 
the  officer.  If  he  does  so,  the  second  order  will  be  void 
and  inoperative.  The  action  of  the  President,  whose 
authority  in  such  a  case  is,  in  the  language  of  the 
Supreme  Court,  '  wholly  dependent  upon  the  letter  of 

1  Sec.  1249,  R.  S.  -  Sec.  1250,  K.  S. 


96  RETIREMENT. 

positive  enactment,'  is  '  equivalent  to  the  judgment  of 
an  appropriate  tribunal  upon  the  facts  as  found,  and 
can  not  be  disturbed.'  If  injustice  has  been  done, 
relief  can  be  afforded  by  Congress  alone."  ^ 

22.  "  The  finding  of  a  retiring  board,  approved  by  the 
President,  is  conclusive  as  to  the  facts.  The  board  finds 
the  facts  and  the  President  approves  or  disapproves  the 
finding,  but  the  law  does  not  empower  him  to  modify 
the  finding  or  to  substitute  a  different  one.  There  is 
here  a  judicial  power  vested  in  the  two,  and  not  in  the 
President  acting  singly,  and  when  the  power  has  been 
once  fully  exercised  it  is  exhausted  as  to  the  case."  ^ 

RETIREMENT. 

1.  "When  any  officer  has  become  incapable  of  per- 
forming the  duties  of  his  ofifice,  he  shall  be  either  retired 
from  active  service,  or  wholly  retired  from  the  service, 
by  the  President,  as  hereinafter  provided.  "^ 

iWinthrop's  Military  Law  and  Precedents,  page  767;  United  States  r. 
Burchard,  125  U.  S.,  179,  180;  BurcUard  v.  United  States,  19  Ct.  CIs.,  137; 
Potts  *•.  United  States,  125  U.  S.,  175;  Miller  v.  United  States,  19  Ct.  CIs., 
338;  McBlair  v.  United  States,  id.,  528;  19  Opin.  Atty.  Gen.,  203.  "The 
finding  of  the  retiring  board,  approved  by  the  President,  is  the  judgment 
of  the  tribunal  created  under  the  law  to  determine  such  questions."  (Potts  v. 
United  States,  supra.) 

"  The  finding,  approved  by  the  President,  fixes  the  fact  that  an  officer's 
incapacity  was  or  was  not  caused  by  the  service,  and  the  fact  once  fixed  can 
not  be  reviewed."     (Burchard  v.  United  States,  supra.) 

"  Upou  the  report  of  the  board,  the  President  had  the  right  to  adopt  one 
of  three  coursfes  with  the  claimant;  he  could  disapprove  the  finding,  and 
thereby  retain  the  claimant  in  the  active  service;  retire  him  from  active 
service,  or  wholly  retire  him  from  the  Army,  as  he  might  determine.  He 
had  a  power  to  exercise  in  the  disposition  of  the  report,  and  his  action 
thereon  made,  in  law,  the  complete  exercise  of  the  full  measure  of  authority 
provided  by  the  statute.  It  is  not  a  continuing  power,  but  is  perfonned  to 
the  extent  of  its  existence  by  the  one  act  of  the  President."  (McBlair  v. 
United  States,  mpra.  And  compare  E.t  parte  Ilandolph,  2  Brock.,  473; 
People  V.  Wayuesville,  88  111.,  470,  cited  in  19  Opin.  Atty.  Gen.,  209.) 

2  Digest  Opin.  J.  A.  G.,  §  2206.     See  U.  S.  r.  Burchard,  125  U.  S.,  179. 

3 Sec.  1245,  K.  S.  (see  sees.  1246  to  1258,  R.  S.,  inclusive).  This  section 
is  taken  from  sec.  16  of  "  an  act  providing  for  the  better  organization  of  the 
Military  Establishment,"  approved  August  3,  1861,  which  prescribed,  "that 
if  any  commissioned  officer  of  the  Army,  or  of  the  Marine  Corps,  shall  have 
become,  or  shall  hereafter  become,  incapable  of  performing  the  duties  of 
his  office,  he  shall  be  placed  upon  the  retired  list  and  withdrawn  from  active 
service  and  command  and  from  the  line  of  promotion." 


RETIREMENT.  97 

2.  ' '  When  a  retiring  board  finds  that  an  officer  is  inca- 
pacitated for  active  service,  and  that  his  incapacity  is 
the  result  of  an  incident  of  service,  and  such  decision  is 
approved  by  the  President,  said  officer  shall  be  retired 
from  active  service  and  placed  on  the  list  of  retired 
officers."  ^ 

3.  "When  the  board  finds  that  an  officer  is  incapaci- 
tated for  active  service,  and  that  his  incapacity  is  not 
the  result  of  any  incident  of  service,  and  its  decision  is 
approved  by  the  President,  the  officer  shall  be  retired 
from  active  service,  or  wholly  retired  from  the  service, 
as  the  President  may  determine."  - 

RETIREMENT  UNDER  ACT  OF  OCTOBER  1,  1890 

1.  The  act  of  October  1,  1890,  providing  for  examina^ 
tion  for  promotion  in  the  Army  directs:  "That  should 
the  officer  fail  in  his  physical  examination  and  be  found 
incapacitated  for  service  by  reason  of  physical  disability 
contracted  in  line''  of  duty,  he  shall  be  retired  with  the 

1  Sec.  1251,  R.  S.  It  does  not  affect  the  authority  to  retire  under  sec.  1251," 
R.  S.,  that  the  incapacity  of  the  officer  may  have  been  found  to  have  re- 
sulted from  a  wouud  received  by  him  while  in  the  volunteer  service  before 
entering  the  Regular  Army. 

-Sec.  1252,  R.  S.  Under  sec.  1252,  R.  S.,  an  officer  may,  in  the  discretion 
of  the  President,  legally  be  retired  by  reason  of  an  incapacity  resulting 
from  habitual  drunkenness. 

Sees.  1251  and  1252,  R.  S.,  are  based  on  sec.  17  of  the  act  cited  in  note  3, 
page  94,  ante,  which  prescribed  as  follows:  "  The  board,  whenever  it  finds  an 
oflRcer  incapacitated  for  active  service,  will  report  whether,  in  its  judgment, 
the  said  incapacity  result  from  long  and  faithful  service,  from  wounds  or  injury 
received  in  the  line  of  duty,  from  sickness  or  exposure  therein,  or  from  any 
other  incident  of  service.  If  so,  and  the  President  approve  such  judgment, 
the  disabled  officer  shall  thereupon  be  placed  upon  the  list  of  retired  officers, 
according  to  the  provisions  of  this  act.  If  otherwise,  and  if  the  President 
concur  in  opinion  with  the  board,  the  officer  shall  be  retired  as  above, 
either  with  his  pay  proper  alone,  or  with  his  service  rations  alone,  at  the 
discretion  of  the  President,  or  he  shall  be  wholly  retired  from  the  service, 
with  one  year's  pay  and  allowances." 

The  incapacity  mentioned  is  a  physical  incapacity.  (Digest  Opiu.  J.  A.  G., 
§§2203,2208.) 

3The  phrase  "in  line  of  duty,"  as  used  in  this  act,  should  be  construed 
as  having  the  same  meaning  with  "  incident  of  service,"  as  used  in  sec.  1249, 
R.  S. 

The  following  is  an  extract  from  a  report  of  the  Judge- Advocate-General 
which,  although  relating  to  enlisted  men,  is  in  principle  applicable  in  the 
50963 7 


98  RETIREMENT. 

rank  to  which  his  seniority  entitled  him  to  be  promoted; 
but  if  he  should  fail  for  any  other  reason  he  shall  be 
suspended  from  promotion  for  one  year,  when  he  shall 

case  of  commissioned  officers.  The  action  of  the  War  Department  on  this 
report  was  in  effect  a  confirmation  of  the  conclusion  arrived  at: 

"  Formerly  the  expression  'line  of  duty'  was  much  more  strictly  con- 
strued than  now.     Attorney  General  Cushing  explained  it  thus: 

"  '  The  phrase  "  line  of  duty  "  is  an  apt  one,  to  denote  that  an  act  of  duty 
performed  must  have  relation  of  causation,  mediate  or  immediate,  to  the 
wound,  the  casualty,  the  injury,  or  the  disease,  producing  disability  or 
death. 

***** 

"  '  Every  person  who  enters  the  military  service  of  the  country — officer, 
soldier,  sailor,  or  marine — takes  upon  himself  certain  moral  and  legal  en- 
gagements of  duty,  which  constitute  his  official  or  professional  obligations. 
While  in  the  performance  of  those  things,  which  the  law  requires  of  him 
as  military  duty,  he  is  in  the  line  of  his  duty.  But,  at  the  same  time,  though 
a  soldier  or  sailor,  he  is  not  the  less  a  man  and  a  citizen,  with  private  rights 
to  exercise  and  duties  to  perform ;  and,  while  attending  to  these  things,  he 
is  not  in  the  line  of  his  public  duty.  In  addition  to  this,  a  soldier  or  sailor, 
like  any  other  man,  has  the  physical  faculty  of  doing  many  things,  which 
are  in  violation  of  duties,  either  general  or  special;  and  in  doing  these 
things  he  is  not  acting  in  the  line  of  his  duty.  Around  all  those  acts  of  the 
soldier  or  sailor  which  are  official  in  their  nature,  the  pension  law  draws  a 
legislative  line,  and  then  they  say  to  the  soldier  or  sailor:  If,  while  per- 
forming acts  which  are  within  that  line,  you  thereby  incur  disability  or 
death,  you,  or  your  widow  or  children,  as  the  case  may  be,  shall  receive  a 
pension  or  other  allowance;  but  not  if  the  disability  or  death  arise  from  acts 
performed  outside  of  that  line,  that  is,  absolutely  disconnected  from,  and 
wholly  independent  of,  the  performance  of  duty.  Was  the  cause  of  dis- 
ability or  death  a  cause  within  the  line  of  duty  or  outside  of  it  ?  Was  that 
cause  appertaining  to,  dependent  upon,  or  otherwise  necessarily  and  essen- 
tially connected  with,  duty  within  the  line,  or  was  it  unappurtenant,  inde- 
pendent, and  not  of  necessary  and  essential  connection  ?  That,  in  my 
judgment,  is  the  true  test-criterion  of  the  class  of  pension  cases  under  con- 
sideration.'    (7  Opiu.  Atty.  Gen.,  161,  162.) 

"A  more  liberal  construction  was  the  earlier  one  of  Attorney  General 
Rush.     Upon  this  point  he  said: — 

"  'I  should  presume,  however,  that  every  officer  in  full  commission,  and 
not  on  furlough,  must  be  considered  in  the  line  of  his  duty,  although,  at 
the  moment,  no  particular  or  active  employment  is  devolved  upon  him. 
The  same  of  a  soldier  who  is  kept  in  pay,  for  it  is  presupposed  of  both  the 
one  and  the  other  that  they  are  at  all  times  prepared  for  duty;  and  it  is 
surely  of  indispensable  obligation  upon  them  to  keep  themselves  detached 
from  other  pursuits,  so  as  to  be  ready  at  a  moment  to  answer  any  call 
emanating  from  those  who  may  be  authorized  to  command  them.'  (1  Opin. 
Atty.  Gen.,  182.) 

"  But  neither  of  these  views  has  been  found  to  be  sufficient,  and  there- 
fore neither  has  been  followed  in  practice. 

"  By  (the  fourth  section  of)  an  act  of  March  3,  1865  (13  Stat.,  488),  it  was 
provided: — 

"  '  That  every  noncommissioned  officer,  private,  or  other  person,  who 
has  been,  or  shall  hereafter  be,  discharged  from  the  army  of  the  United 


RETIREMENT.  99 

be  reexamined,  and  in  case  of  failure  on  such  reexami- 
nation he  shall  be  honorably  discharged,  with  one  year's 
pay,  from  the  Army.'' 

2.  All  questions  relating  to  the  physical  condition  of 
an  officer  shall  be  determined  by  the  full  board. 

The  physical  examination  will  be  thorough,  and  will 
include  the  ordinary  analysis  of  the  urine. 

states  by  reason  of  wouuds  received  in  battle,  on  skirmish,  on  picket,  or  in 
action,  or  in  the  line  of  dutj',  shall  be  entitled  to  receive  the  same  bounty 
as  if  he  had  served  out  his  full  term.' 

"  And  by  an  act  approved  April  12,  1866  (14  Stat.,  352),  it  was  declared — 

"  '  That  the  true  intent  and  meaning  of  the  words  "  or  in  the  line  of 
duty,"  used  in  the  fourth  section  of  the  act  approved  March  3,  1865,  *  *  * 
requires  that  the  benefit  of  the  provision  of  said  section  shall  be  extended 
to  any  enlisted  man  or  other  person  entitled  by  law  to  bounty  who  has 
been  or  may  be  discharged  by  reason  of  a  wound  received  while  actually  in 
service  under  military  orders,  not  at  the  time  on  furlough  or  leave  of 
absence,  nor  engaged  in  any  unlawful  or  unauthorized  act  or  pursuit.' 

"  In  this  enactment  we  have  a  legislative  construction  of  the  expression 
'  in  the  line  of  duty,'  as  used  in  the  earlier  legislation  cited.  To  be  in  the 
line  of  duty,  in  the  sense  of  that  legislation,  the  soldier  must  be  actually  in 
service  under  military  orders,  and  he  must  not  be  on  furlough  nor  engaged 
in  any  unlawful  or  unauthorized  act  or  pursuit.  For  the  purpose  of  that 
legislation  this  legislative  construction  would  be  conclusive,  but  it  is  not 
necessarily  so  in  determining  the  soldier's  condition  in  other  connections — 
his  right  of  admission  to  the  Soldiers'  Home,  for  example.  In  determining 
his  general  military  status  or  condition  in  respect  to  the  question  under 
consideration  a  further  limitation  has  in  practice  been  recognized,  namely, 
that  the  disability  must  not  be  the  result  of  the  unlawful  or  unauthorized 
act,  as  a  direct  or  a  contributory  cause.  A  circular  of  the  Surgeon  Gen- 
eral's Office,  dated  May  11,  1893,  approved  by  the  Secretary  of  War,  states 
the  matter  as  follows: 

"  '  It  is  just  to  assume  that  all  diseases  coutracted  or  injuries  received 
while  an  officer  or  soldier  is  in  the  military  service  of  the  United  States 
occur  in  the  line  of  duty  unless  the  surgeon  knows,  first,  that  the  disease 
or  injury  existed  before  entering  the  service;  second,  that  it  was  contracted 
while  absent  from  duty  on  furlough  or  otherwise;  or,  third,  that  it  occurred 
in  consequence  of  willful  neglect  or  immoral  conduct  of  the  sick  man 
himself.' 

"  I  am  inclined  to  believe  that  the  principle  as  stated  in  the  act  of  April 
12,  1866,  modified  by  the  limitation  indicated,  is  as  accurate  a  general 
statement  of  the  meaning  in  military  administration  of  the  expression  'in 
the  line  of  duty'  as  can  be  given.  It  is,  however,  subject  to  exceptions. 
Thus  a  soldier  may  be  on  furlough  and  yet  in  the  line  of  duty,  as  when  he 
is  en  route  to  his  station  at  the  expiration  of  his  furlough,  or  when  during 
his  furlough  he  is,  in  compliance  with  orders,  on  his  way  to  a  place  to 
report  his  whereabouts.  So,  certain  acts  may  in  a  measure  be  contributory 
causes  of  disability,  and  yet  not  to  such  a  degree  as  to  bring  the  case 
within  the  general  rule,  as  when  the  disability  is  the  result  of  negligence, 
but  the  negligence  is  not  of  such  a  degree  as  to  amount  to  culpable  con- 
tributory negligence.  Such  cases  can  only  be  properly  decided  on  their 
own  merits." 


100  RETIREMENT. 

Defects  of  vision,  resulting  from  errors  of  refraction, 
that  are  not  excessive,  and  that  may  be  entirely  cor- 
rected by  glasses,  do  not  disqualify,  unless  they  are  due 
to  or  are  accompanied  by  organic  disease. 

3.  When  the  board  finds  an  officer  physically  inca- 
pacitated for  service,  it  shall  conclude  the  examination 
by  finding  and  reporting  the  cause  which,  in  its  judg- 
ment, has  produced  his  disability,  and  whether  such 
disability  was  contracted  in  the  line  of  duty. 

4.  The  record  in  each  case  where  an  officer  is  found 
physically  disqualified  shall  be  authenticated  by  all  the 
members,  including  medical  officers,  and  the  recorder. 
In  all  other  cases  the  medical  officer  will  not  be  required 
to  sign  the  proceedings.  If  any  member  dissents  from 
the  opinion  of  the  board,  it  will  be  so  stated. 

5.  Any  officer  reported  by  a  retiring  board  as  inca- 
pacitated by  reason  of  physical  disability,  the  result  of 
an  incident  of  service,  shall,  if  the  proceedings  of  said 
board  are  approved  by  the  President,  be  regarded  as 
physically  unfit  for  promotion  within  the  meaning  of 
section  3  of  the  act  of  October  1, 1890,  and  will  be  retired 
with  the  rank  to  which  his  seniority  entitles  him  when- 
ever a  vacancy  occurs  that  otherwise  would  result  in 
his  promotion  on  the  active  list;  provided,  that  before 
the  occurrence  of  such  vacancy  he  shall  not  have  been 
placed  on  the  retired  list.^ 

6.  The  finding  of  the  board  of  examination  that  the 
officer  is  incapacitated  for  duty  is  not  per  se  final,  but 
must  be  reported  for  the  action  of  the  Secretary  of  War 
and  passed  upon  by  him.  Where  the  finding  and  report 
of  the  board  have  been  approved  but  not  yet  executed 
by  actual  retirement,  there  may  intervene  contingencies 
which  would  supersede  such  proceeding— as  the  trial 
and  dismissal  of  the  officer  by  court-martial,  or  the 
arising  of  new  causes  which  might  make  proper  that  the 
question  of  his  disability  be  inquired  into  by  a  retiring 

^G.  0.  41,  A.  G.  0.,  1897,  which  also  contains  detailed  instructions  as  to 
procedure  of  board  of  examinations  in  general. 


RETIREMENT.  101 

board  convened  under  section  1246,  Revised  Statutes. 
But  unless  some  such  new  occasion  and  ground  of  dis- 
qualification be  presented,  the  action  of  the  Secretary 
of  War,  in  approving  the  report,  remains  final  and  ex- 
haustive, and  the  officer  is  entitled  to  be  retired  under 
the  act  of  1890,  and  can  not  legally  be  ordered  before 
such  retiring  board. ^ 

.   1  Digest  Opin.  J.  A.  G.,  §  2207. 


ARTICLES  OF  WAR 


Section  1342,  R,  S.  The  armies  of  the  United  States 
shall  be  governed  by  the  following  rules  and  articles. 
The  word  officer,  as  used  therein,  shall  be  understood  to 
designate  commissioned  officers,  the  word  soldier  shall  be 
understood  to  include  noncommissioned  officers,  musi- 
cians, artificers,  and  privates,  and  other  enlisted  men, 
and  the  convictions  mentioned  therein  shall  be  under- 
stood to  be  convictions  by  court-martial. 

Article  1.  Every  officer  now  in  the  Army  of  the 
United  States  shall,  wjthin  six  months  from  the  passing 
of  this  act,  and  every  officer  hereafter  appointed  shall, 
before  he  enters  upon  the  duties  of  his  office,  subscribe 
these  rules  and  articles. 

Art.  2.  These  rules  and  articles  shall  be  read  to  every 
enlisted  man  at  the  time  of,  or  within  six  days  after,  his 
enlistment,  and  he  shall  thereupon  take  an  oath  or  affir- 
mation, in  the  following  form:  ''I,  A.B.,do  solemnly 
swear  (or  affirm)  that  I  will  bear  true  faith  and  alle- 
giance to  the  United  States  of  America:  that  I  will  serve 
them  honestly  and  faithfully  against  all  their  enemies 
whomsoever;  and  that  I  will-  obey  the  orders  of  the 
President  of  the  United  States  and  the  orders  of  the 
officers  appointed  over  me,  according  to  the  rules  and 
articles  of  war."  This  oath  may  be  taken  before  any 
commissioned  officer  of  the  Army. 

Art.  3.  Every  officer  who  knowingly  enlists  or  mus- 
ters into  the  military  service  any  minor  over  the  age  of 
16  years  without  the  written  consent  of  his  parents  or 
guardians,  or  any  minor  under  the  age  of  10  years,  or 
any  insane  or  intoxicated  persons,  or  any  deserter  from 
the  military  or  naval  service  of  the  United  States,  or 
any  person  who  has  been  convicted  of  any  infamous 

(102) 


UNIVERSITY 

OF 


"    ARTICLES    OF    WAR.  103 


criminal  offense,  shall,  upon  conviction,  be  dismissed 
from  the  service,  or  suffer  such  other  punishment  as  a 
court-martial  may  direct. 

Art.  4.  No  enlisted  man,  duly  sworn,  shall  be  dis- 
charged from  the  service  without  a  discharge  in  writing, 
signed  by  a  field  officer  of  the  regiment  to  which  he 
belongs,  or  by  the  commanding  officer,  when  no  field 
officer  is  present;  and  no  discharge  shall  be  given  to  any 
enlisted  man  before  his  term  of  service  has  expired, 
except  by  order  of  the  President,  the  Secretary  of  War, 
the  commanding  officer  of  a  department,  or  by  sentence 
of  a  general  court-martial. 

Art.  5.  Any  officer  who  knowingly  musters  as  a  soldier 
a  person  who  is  not  a  soldier  shall  be  deemed  guilty  of 
knowingly  making  a  false  muster,  and  punished  accord- 
ingly. 

Art.  6.  Any  officer  who  takes  money,  or  other  thing, 
by  way  of  gratification,  on  mustering  any  regiment, 
troop,  battery,  or  company,  or  on  signing  muster  rolls, 
shall  be  dismissed  from  the  service,  and  shall  thereby  be 
disabled  to  hold  any  office  or  employment  in  the  service 
of  the  United  States. 

Art.  7.  Every  officer  commanding  a  regiment,  an  in- 
dependent troop,  battery,  or  company,  or  a  garrison, 
shall,  in  the  beginning  of  every  month,  transmit  through 
the  proper  channels,  to  the  Department  of  War,  an 
exact  return  of  the  same,  specifying  the  names  of  the 
officers  then  absent  from  their  posts,  with  the  reasons 
for  and  the  time  of  their  absence.  And  any  officer  who, 
through  neglect  or  design,  omits  to  send  such  returns, 
shall,  on  conviction  thereof,  be  punished  as  a  court- 
martial  may  direct. 

Art.  8.  Every  officer  who  knowingly  makes  a  false 
return  to  the  Department  of  War,  or  to  any  of  his  supe- 
rior officers,  authorized  to  call  for  such  returns,  of 
the  state  of  the  regiment,  troop,  or  company,  or  garri- 
son under  his  command;  or  of  the  arms,  ammunition, 


104  ARTICLES   OF   WAR. 

clothing,  or  other  stores  thereunto  belonging,  shall,  on 
conviction  thereof  before  a  court-martial,  be  cashiered.^ 

Art.  9.  All  public  stores  taken  from  the  enemy  shall 
be  secured  for  the  service  of  the  United  States;  and 
for  neglect  thereof  the  commanding  officer  shall  be 
answerable. 

Art.  10.  Every  officer  commanding  a  troop,  battery, 
or  company,  is  charged  with  the  arms,  accouterments, 
ammunition,  clothing,  or  other  military  stores  belong- 
ing to  his  command,  and  is  accountable  to  his  colonel 
in  case  of  their  being  lost,  spoiled,  or  damaged  other- 
wise than  by  unavoidable  accident,  or  on  actual  service. 

Art.  11.  Every  officer  commanding  a  regiment  or  an 
independent  troop,  battery,  or  company,  not  in  the 
field,  may,  when  actually  quartered  vdth  such  com- 
mand, grant  furloughs  to  the  enlisted  men,  in  such 
numbers  and  for  such  time  as  he  shall  deem  consistent 
with  the  good  of  the  service.  Every  officer  command- 
ing a  regiment,  or  an  independent  troop,  battery,  or 
company,  in  the  field,  may  grant  furloughs  not  exceed- 
ing thirty  days  at  one  time,  to  five  per  cent  of  the 
enlisted  men,  for  good  conduct  in  the  line  of  duty,  but 
subject  to  the  approval  of  the  commander  of  the  forces 
of  which  said  enlisted  men  form  a  part.  Every  com- 
pany officer  of  a  regiment,  commanding  any  troop, 
battery,  or  company  not  in  the  field,  or  commanding  in 
any  garrison,  fort,  post,  or  barrack,  may,  in  the  absence 
of  his  field  officer,  grant  furloughs  to  the  enlisted  men, 
for  a  time  not  exceeding  twenty  days  in  six  months, 
and  not  to  more  than  two  persons  to  be  absent  at  the 
same  time. 

Art.  12.  At  every  muster  of  a  regiment,  troop,  bat- 
tery, or  company,  the  commanding  officer  thereof  shall 
give  to  the  mustering  officer  certificates,  signed  by  him- 
self, stating  how  long  absent  officers  have  been  absent 
and  the  reasons  of  their  absence.  And  the  commanding 
officer  of  every  troop,  battery,  or  company  shall  give 

1"  Cashiered"  and  "dismissed  I'rom  the  service"  are  now  considered 
practically  synonymous. 


ARTICLES   OF   WAR.  105 

like  certificates,  stating  how  long  absent  noncommis- 
sioned officers  and  private  soldiers  have  been  absent 
and  the  reasons  of  their  absence.  Such  reasons  and 
time  of  absence  shall  be  inserted  in  the  muster  rolls 
opposite  the  names  of  the  respective  absent  officers  and 
soldiers,  and  the  certificates,  together  with  the  muster 
rolls,  shall  be  transmitted  by  the  mustering  officer  to 
the  Department  of  War  as  speedily  as  the  distance  of 
the  place  and  muster  will  admit. 

Art.  13.  Every  officer  who  signs  a  false  certificate, 
relating  to  the  absence  or  pay  of  an  officer  or  soldier, 
shall  be  dismissed  from  the  service. 

Art.  14.  Any  officer  who  knowingly  makes  a  false 
muster  of  man  or  horse,  or  who  signs,  or  directs,  or 
allows  the  signing  of  any  muster  roll,  knowing  the 
same  to  contain  a  false  muster,  shall,  upon  proof  thereof 
by  two  witnesses,  before  a  court-martial,  be  dismissed 
from  the  service,  and  shall  thereby  be  disabled  to  hold 
any  office  or  employment  in  the  service  of  the  United 
States. 

Art.  15.  Any  officer  who,  willfully  or  through  neg- 
lect, suffers  to  be  lost,  spoiled,  or  damaged,  any  military 
stores  belonging  to  the  United  States,  shall  make  good 
the  loss  or  damage,  and  be  dismissed  from  the  service. 

Art.  16.  Any  enlisted  man  who  sells,  or  willfully  or 
through  neglect  wastes  the  ammunition  delivered  out 
to  him,  shall  be  punished  as  a  court-martial  may  direct. 

Art.  17.  Any  soldier  who  sells,  or  through  neglect 
loses  or  spoils  his  horse,  arms,  clothing,  or  accouter- 
ments,  shall  be  punished  as  a  court-martial  may  ad- 
judge, subject  to  such  limitations  as  may  be  prescribed 
by  the  President  by  virtue  of  the  power  vested  in  him.^ 

Art.  18.  Any  officer  commanding  in  any  garrison, 
fort,  or  barracks  of  the  United  States  who,  for  his  pri- 
vate advantage,  lays  any  duty  or  imposition  upon  or  is 
interested  in,  the  sale  of  any  victuals,  liquors,  or  other 

1 17th  A.  W.,  as  amended  by  act  of  July  27,  1892;  see  G.  0.  57,  A.  G.  0., 
1892. 


106  ARTICLES    OF   WAR. 

necessaries  of  life,  brought  into  such  garrison,  fort,  or 
barracks,  for  the  use  of  the  soldiers,  shall  be  dismissed 
from  the  service. 

Art.  19.  Any  officer  who  uses  contemptuous  or  disre- 
spectful words  against  the  President,  the  Vice-President, 
the  Congress  of  the  United  States,  or  the  chief  magis- 
trate or  legislature  of  any  of  the  United  States  in  which 
he  is  quartered,  shall  be  dismissed  from  the  service,  or 
otherwise  punished,  as  a  court-martial  may  direct. 
Any  soldier  who  so  offends  shall  be  punished  as  a  court- 
martial  may  direct. 

Art.  20.  Any  officer  or  soldier  who  behaves  himself 
with  disrespect  toward  his  commanding  officer  shall  be 
punished  as  a  court-martial  may  direct. 

Art.  21.  Any  officer  or  soldier  who,  on  any  pretense 
whatsoever,  strikes  his  superior  officer,  or  draws  or  lifts 
up  any  weapon,  or  offers  any  violence  against  him,  being 
in  the  execution  of  his  office,  or  disobeys  any  lawful  com- 
mand of  his  superior  officer,^  shall  suffer  death,  or  such 
other  punishment  as  a  court-martial  may  direct. 

Art.  22.  Any  officer  or  soldier  who  begins,  excites, 
causes,  or  joins  in  any  mutiny  or  sedition,  in  any  troop, 
battery,  company,  party,  post,  detachment,  or  guard, 
shall  suffer  death,  or  such  other  punishment  as  a  court- 
martial  may  direct. 

Art.  23.  Any  officer  or  soldier  who,  being  present  at 
any  mutiny  or  sedition,  does  not  use  his  utmost  endeavor 
to  suppress  the  same ,  or  having  knowledge  of  any  in- 
tended mutiny  or  sedition,  does  not,  without  delay,  give 
information  thereof  to  his  commanding  officer,  shall 
suffer  death,  or  such  other  punishment  as  a  court-martial 
may  direct. 

Art.  24.  All  officers,  of  what  condition  soever,  have 
power  to  part  and  quell  all  quarrels,  frays,  and  disorders, 
whether  among  persons  belonging  to  his-  own  or  to 

1  Disobedience  of  an  order  of  a-contract  surgeon,  of  a  dental  surgeon,  of  a 
veterinarian,  and  a  noncommissioned  officer  should  be  charged  under  the  62d 
Article  of  War;  see  Form  d,  page  1^1,  pod.  Disobedience  of  an  order  by  a 
military  convict  should  also  be  charged  under  the  62d  Article  of  War. 

2  Sic  in  Revised  Statutes. 


ARTICLES    OF   WAR.  107 

another  corps,  regiment,  troop,  battery,  or  company,  and 
to  order  officers  into  arrest,  and  noncommissioned  offi- 
cers and  soldiers  into  confinement,  who  take  part  in  the 
same,  until  their  proper  superior  officer  is  acquainted 
therewith.  A nd  whosoever,  being  so  ordered ,  refuses  to 
obey  such  officer  or  noncommissioned  officer,  or  draws 
a  weapon  upon  him,  shall  be  punished  as  a  court-martial 
may  direct. 

Art.  25.  No  officer  or  soldier  shall  use  any  reproachful 
or  provoking  speeches  or  gestures  to  another.  Any  offi- 
cer who  so  offends  shall  be  put  in  arrest.  Any  soldier 
who  so  offends  shall  be  confined,  and  required  to  ask 
pardon  of  the  party  offended  in  the  presence  of  his  com- 
manding officer. 

Art.  26.  No  officer  or  soldier  shall  send  a  challenge  to 
another  officer  or  soldier  to  fight  a  duel,  or  accept  a 
challenge  so  sent.  Any  officer  who  so  offends  shall  be 
dismissed  from  the  service.  Any  soldier  who  so  offends 
shall  suffer  such  punishment  as  a  court-martial  may 
direct. 

Art.  27.  Any  officer  or  noncommissioned  officer,  com- 
manding a  guard,  who,  knowingly  and  willingly,  suffers 
any  person  to  go  forth  to  fight  a  duel  shall  be  punished 
as  a  challenger;  and  all  seconds  or  promoters  of  duels, 
and  carriers  of  challenges  to  fight  duels,  shall  be  deemed 
principals,  and  punished  accordingly.  It  shall  be  the 
duty  of  any  officer  commanding  an  army,  regiment, 
troop,  battery,  company,  post,  or  detachment,  who 
knows  or  has  reason  to  believe  that  a  challenge  has 
been  given  or  accepted  by  any  officer  or  enlisted  man 
under  his  command,  immediately  to  arrest  the  offender 
and  bring  him  to  trial. 

Art.  28.  Any  officer  or  soldier  who  upbraids  another 
officer  or  soldier  for  refusing  a  challenge  shall  himself 
be  punished  as  a  challenger;  and  all  officers  and  soldiers 
are  hereby  discharged  from  any  disgrace  or  opinion  of 
disadvantage  which  might  arise  from  their  having  re- 
fused to  accept  challenges,  as  they  will  only  have  acted 


108  ARTICLES    OF   WAR. 

in  obedience  to  the  law,  and  have  done  their  duty  as 
good  soldiers,  who  subject  themselves  to  discipline. 

Art.  29.  Any  officer  who  thinks  himself  wronged  by 
the  commanding  officer  of  his  regiment,  and,  upon  due 
application  to  such  commander,  is  refused  redress,  may 
complain  to  the  general  commanding  in  the  State  or 
Territory  where  such  regiment  is  stationed.  The  gen- 
eral shall  examine  into  said  complaint  and  take  proper 
measures  for  redressing  the  wrong  complained  of;  and 
he  shall,  as  soon  as  possible,  transmit  to  the  Depart- 
ment of  War  a  true  statement  of  such  complaint,  with 
the  proceedings  had  thereon. 

Art.  30.  Any  soldier  who  thinks  himself  wronged  by 
any  officer  may  complain  to  the  commanding  officer  of 
his  regiment,  who  shall  summon  a  regimental  court- 
martial  for  the  doing  of  justice  to  the  complainant. 
Either  party  may  appeal  from  such  regimental  court- 
martial  to  a  general  court-martial;  but  if,  upon  such 
second  hearing,  the  appeal  appears  to  be  groundless  and 
vexatious,  the  party  appealing  shall  be  punished  at  the 
discretion  of  said  general  court-martial.^ 

Art.  31.  Any  officer  or  soldier  who  lies  out  of  his 
quarters,  garrison,  or   camp,  without   leave  from  his 

1  The  "  regimental  court-martial,"  under  the  30th  A.  W.,  can  not  be  used 
as  a  substitute  for  a  general  court-martial  or  court  of  inquiry,  for  it  can  not 
try  an  officer  nor  make  an  investigation  for  the  purpose  of  determining 
whether  he  shall  be  brought  to  trial.  When,  if  the  soldier's  complaint 
should  be  sustained,  the  only  redress  would  be  a  reprimand  to  the  officer, 
the  matter  would  not  be  within  the  jurisdiction  of  this  court.  It  can  only 
investigate  such  matters  as  are  susceptible  to  redress  by  the  doing  of  justice 
to  the  complainant;  that  is,  when  in  some  way  he  can  be  set  right  by  put- 
ting a  stop  to  t-he  wrongful  condition  which  the  officer  has  caused  to  exist. 
Erroneous  stoppages  of  pay,  irregularity  of  detail,  the  apparent  requirement 
of  more  labor  than  from  any  other  soldiers,  and  the  like,  might  in  this  way 
be  investigated  and  the  wrongful  condition  put  an  end  to.  The  court  will 
in  such  cases  record  the  evidence  and  its  conclusions  of  fact,  and  recommend 
the  action  to  be  taken.  The  members  of  the  court  (and  the  judge-advocate) 
will  be  sworn  faithfully  to  perform  their  duties  as  members  (and  judge- 
advocate)  of  the  court,  and  the  proceedings  will  be  recorded,  as  nearly  as 
practicable,  in  the  same  manner  as  the  proceedings  of  ordinary  courts- 
martial. 


ARTICLES    OF    WAR.  109 

superior  officer,  shall  T)e  punished  as  a  court-martial 
may  direct. 

Art.  32.  Any  soldier  who  absents  himself  from  his 
troop,  battery,  company,  or  detachment,  without  leave 
from  his  commanding  officer,  shall  be  punished  as  a 
court-martial  may  direct. 

Art.  33.  Any  officer  or  soldier  who  fails,  except  when 
prevented  by  sickness  or  other  necessity,  to  repair,  at 
the  fixed  time,  to  the  place  of  parade,  exercise  or  other 
rendezvous  appointed  by  his  commanding  officer,  or  goes 
from  the  same,  without  leave  from  his  commanding  of- 
ficer, before  he  is  dismissed  or  relieved,  shall  be  punished 
as  a  court-martial  may  direct. 

Art.  34.  Any  soldier  who  is  found  one  mile  from  camp, 
without  leave  in  writing  from  his  commanding  officer, 
shall  be  punished  as  a  court-martial  may  direct. 

Art.  35.  Any  soldier  who  fails  to  retire  to  his  quar- 
ters or  tent  at  the  beating  of  retreat,  shall  be  punished 
according  to  the  nature  of  his  offense. 

Art.  36.  No  soldier  belonging  to  any  regiment,  troop, 
battery,  or  company  shall  hire  another  to  do  his  duty  for 
him,  or  be  excused  from  duty,  except  in  cases  of  sick- 
ness, disability,  or  leave  of  absence.  Every  such  soldier 
found  guilty  of  hiring  his  duty,  and  the  person  so  hired 
to  do  another's  duty,  shall  be  punished  as  a  court- 
martial  may  direct. 

Art.  37.  Every  noncommissioned  officer  who  connives 
at  such  hiring  of  duty  shall  be  reduced.  Every  officer 
who  knows  and  allows  such  practices  shall  be  punished 
as  a  court-martial  may  direct. 

Art.  38.  Any  officer  who  is  found  drunk  on  his  guard, 
party,  or  other  duty,  shall  be  dismissed  from  the  service. 
Any  soldier  who  so  offends  shall  suffer  such  punishment 
as  a  court-martial  may  direct.  No  court-martial  shall 
sentence  any  soldier  to  be  branded,  marked,  or  tattooed. 

Art.  39.  Any  sentinel  who  is  found  sleeping  upon  his 
post,  or  who  leaves  it  before  he  is  regularly  relieved, 


110  ARTICLES    OF    WAR. 

shall  suffer  death  or  such  other  punishment  as  a  court- 
martial  may  direct. 

Art.  40.  Any  officer  or  soldier  who  quits  his  guard, 
platoon,  or  division,  without  leave  from  his  superior 
officer,  except  in  a  case  of  urgent  necessity,  shall  be 
punished  as  a  court-martial  may  direct. 

Art.  41.  Any  officer  who,  by  any  means  whatsoever, 
occasions  false  alarms  in  camp,  garrison,  or  quarters, 
shall  suffer  death,  or  such  other  punishment  as  a  court- 
martial  may  direct. 

Art.  42.  Any  officer  or  soldier  who  misbehaves  him- 
self before  the  enemy,  runs  away,  or  shamefully  aban- 
dons any  fort,  post,  or  guard,  which  he  is  commanded 
to  defend,  or  speaks  words  inducing  others  to  do  the 
like,  or  casts  away  his  arms  or  ammunition,  or  quits  his 
post  or  colors  to  plunder  or  pillage,  shall  suffer  death, 
or  such  other  punishment  as  a  court-martial  may  direct. 

Art.  43.  If  any  commander  of  any  garrison,  fortress, 
or  post  is  compelled,  by  the  officers  and  soldiers  under 
his  command,  to  give  up  to  the  enemy  or  to  abandon 
it,  the  officers  or  soldiers  so  offending  shall  suffer  death, 
or  such  other  punishment  as  a  court-martial  may  direct. 

Art.  44.  Any  person  belonging  to  the  armies  of  the 
United  States  who  makes  known  the  watchword  to  any 
person  not  entitled  to  receive  it,  according  to  the  rules 
and  discipline  of  war,  or  presumes  to  give  a  parole  or 
watchword  different  from  that  which  he  received,  shall 
suffer  death,  or  such  other  punishment  as  a  court- 
martial  may  direct. 

Art.  45.  Whosoever  relieves  the  enemy  with  money, 
victuals,  or  ammunition,  or  knowingly  harbors  or  pro- 
tects an  enemy,  shall  suffer  death,  or  such  other  pimish- 
ment  as  a  court-martial  may  direct. 

Art.  46.  Whosoever  holds  correspondence  with,  or 
gives  intelligence  to,  the  enemy,  either  directly  or  indi- 
rectly, shall  suffer  death,  or  such  other  punishment  as 
a  court-martial  may  direct. 

Art.  47.  Any  officer  or  soldier  who,  having  received 
pay,  or  having  been  duly  enlisted  in  the  service  of  the 


ARTICLES    OF    WAR.  HI 

ITnited  States,  deserts  the  same,  shall,  in  time  of  war, 
suffer  death,  or  such  other  punishment  as  a  court-martial 
may  direct;  and  in  time  of  peace,  any  punishment,  ex- 
cepting death,  which  a  court-martial  may  direct. 

Art.  48.  Every  soldier  who  deserts  the  service  of  the 
United  States  shall  be  liable  to  serve  for  such  period  as 
shall,  with  the  time  he  may  have  served  previous  to  his 
desertion,  amount  to  the  full  term  of  his  enlistment; 
and  such  soldier  shall  be  tried  by  a  court-martial  and 
punished,  although  the  term  of  his  enlistment  may  have 
elapsed  previous  to  his  being  apprehended  and  tried. 

Art.  49.  Any  officer  who,  having  tendered  his  resigna- 
tion, quits  his  post  or  proper  duties,  without  leave  and 
with  intent  to  remain  permanently  absent  therefrom, 
prior  to  due  notice  of  the  acceptance  of  the  same,  shall 
be  deemed  and  punished  as  a  deserter. 

Art."  50.  No  noncommissioned  officer  or  soldier  shall 
enlist  himself  in  any  other  regiment,  troop,  or  company, 
without  a  regular  discharge  from  the  regiment,  troop, 
or  company  in  which  he  last  served,  on  a  penalty  of 
being  reputed  a  deserter,  and  suffering  accordingly. 
And  in  case  any  officer  shall  knowingly  receive  and 
entertain  such  noncommissioned  officer  or  soldier,  or 
shall  not,  after  his  being  discovered  to  be  a  deserter, 
immediately  confine  him  and  give  notice  thereof  to  the 
corps  in  which  he  last  served,  the  said  officer  shall,  by  a 
court-martial,  be  cashiered. 

Art.  51.  Any  officer  or  soldier  who  advises  or  per- 
suades any  other  officer  or  soldier  to  desert  the  service 
of  the  United  States  shall,  in  time  of  war,  suffer  death, 
or  such  other  punishment  as  a  court-martial  may  direct; 
and,  in  time  of  peace,  any  punishment,  excepting  death, 
which  a  court-martial  may  direct. 

Ajrt.  52.  It  is  earnestly  recommended  to  all  officers  and 
soldiers  diligently  to  attend  divine  service.  Any  officer 
who  behaves  indecently  or  irreverently  at  any  place  of 
divine  worship  shall  be  brought  before  a  general  court- 
martial,  there  to  be  publicly  and  severely  reprimanded 
by  the  president  thereof.     Any  soldier  who  so  offends 


113  ARTICLES   OF   WAR. 

shall,  for  his  first  offense,  forfeit  one-sixth  of  a  dollar; 
for  each  further  offense  he  shall  forfeit  a  like  sum,  and 
shall  be  confined  twenty-four  hours.  The  money  so  for- 
feited shall  be  deducted  from  his  next  pay,  and  shall  be 
applied,  by  the  captain  or  senior  officer  of  his  troop, 
battery,  or  company,  to  the  use  of  the  sick  soldiers  of 
the  same. 

Art.  53.  Any  officer  who  uses  any  profane  oath  or 
execration  shall,  for  each  offense,  forfeit  and  pay  one 
dollar.  Any  soldier  who  so  offends  shall  incur  the  pen- 
alties provided  in  the  preceding  article;  and  all  moneys 
forfeited  for  such  offenses  shall  be  applied  as  therein 
provided. 

Art.  54.  Every  officer  commanding  in  quarters,  garri- 
son, or  on  the  march,  shall  keep  good  order,  and,  to  the 
utmost  of  his  power,  redress  all  abuses  or  disorders 
which  may  be  committed  by  any  officer  or  soldier  under 
his  command;  and  if,  upon  complaint  made  to  him  of 
officers  or  soldiers  beating  or  otherwise  ill-treating  any 
person,  disturbing  fairs  or  markets,  or  committing  any 
kind  of  riot,  to  the  disquieting  of  the  citizens  of  the 
United  States,  he  refuses  or  omits  to  see  justice  done  to 
the  offender,  and  reparation  made  to  the  party  injured, 
so  far  as  part  of  the  offender's  pay  shall  go  toward  such 
reparation,  he  shall  be  dismissed  from  the  service,  or 
otherwise  punished  as  a  court-martial  may  direct. 

Art.  55.  All  officers  and  soldiers  are  to  behave  them- 
selves orderly  in  quarters  and  on  the  march;  and  who- 
ever commits  any  waste  or  spoil,  either  in  walks  or  trees, 
parks,  warrens,  fish  ponds,  houses,  gardens,  grain  fields, 
inclosures,  or  meadows,  or  maliciously  destroys  any  prop- 
erty whatsoever  belonging  to  inhabitants  of  the  United 
States  (unless  by  order  of  a  general  officer  commanding 
a  separate  army  in  the  field) ,  shall,  besides  such  penalties 
as  he  may  be  liable  to  by  law,  be  punished  as  a  court- 
martial  may  direct. 

Art.  56.  Any  officer  or  soldier  who  does  violence  to 
any  person  bringing  provisions  or  other  necessaries  to 


ARTICLES    OF   WAR.  113 

the  camp,  garrison,  or  quarters  of  the  forces  of  the 
United  States  in  foreign  parts,  shall  suffer  death,  or  such 
other  punishment  as  a  court-martial  may  direct. 

Art.  57.  Whosoever,  belonging  to  the  armies  of  the 
United  States  in  foreign  parts,  or  at  any  place  within 
the  United  States  or  their  Territories  during  rebellion 
against  the  supreme  authority  of  the  United  States, 
forces  a  safe-guard,  shall  suffer  death. 

Art.  58.  In  time  of  war,  insurrection,  or  rebellion, 
larceny,  robbery,  burglary,  arson,  mayhem,  manslaugh- 
ter, murder,  assault  and  battery  with  intent  to  kill, 
wounding,  by  shooting  or  stabbing,  with  an  intent  to 
commit  murder,  rape,  or  an  assault  and  battery  with  an 
intent  to  commit  rape,  shall  be  punishable  by  the  sen- 
tence of  a  general  court-martial,  when  committed  by 
persons  in  the  military  service  of  the  United  States,  and 
the  punishment  in  any  such  case  shall  not  be  less  than 
the  punishment  provided,  for  the  like  offense,  by  the  laws 
of  the  State,  Territory,  or  District  in  which  such  offense 
may  have  been  committed. 

Art.  59.  When  any  officer  or  soldier  is  accused  of  a 
capital  crime,  or  of  any  offense  against  the  person  or 
property  of  any  citizen  of  any  of  the  United  States 
which  is  punishable  by  the  laws  of  the  land,  the  com- 
manding officer  and  the  officers  of  the  regiment,  troop, 
battery,  company,  or  detachment  to  which  the  person 
so  accused  belongs  are  required,  except  in  time  of  war, 
upon  application  duly  made  by  or  in  behalf  of  the  party 
injured,  to  use  their  utmost  endeavors  to  deliver  him 
over  to  the  civil  magistrate,  and  to  aid  the  officers  of 
justice  in  apprehending  and  securing  him,  in  order  to 
bring  him  to  trial.  If,  upon  such  application,  any  officer 
refuses  or  willfully  neglects,  except  in  time  of  war,  to 
deliver  over  such  accused  person  to  the  civil  magistrates. 
or  to  aid  the  officers  of  justice  in  apprehending  him,  he 
shall  be  dismissed  from  the  service.^ 

1  Municipal  ordinances  and  by-laws  are  part  of  the  "laws  of  the  land" 
within  the  meaning  of  the  phrase  as  used  in  the  59th  A.  W.  (Opiu.  of 
Atty.  Gen.;  see  cir.  15,  A.  G.  0.,  1894.) 

50963 8 


114  ARTICLES    OF    WAR. 

Art.  60.  Any  person  in  the  military  service  of  the 
United  States  who  makes  or  causes  to  be  made  any  claim 
against  the  United  States,  or  any  officer  thereof,  know- 
ing such  claim  to  be  false  or  fraudulent;  or 

[2]  Who  presents  or  causes  to  be  presented  to  any  per- 
son in  the  civil  or  military  service  thereof,  for  approval 
or  payment,  any  claim  against  the  United  States  or  any 
officer  thereof,  knowing  such  claim  to  be  false  or  fraudu- 
lent; or 

[3]  Who  enters  into  any  agreement  or  conspiracy  to 
defraud  the  United  States  by  obtaining,  or  aiding  others 
to  obtain,  the  allowance  or  payment  of  any  false  or 
fraudulent  claim;  or 

[4]  Who,  for  the  purpose  of  obtaining  or  aiding  others 
to  obtain,  the  approval,  allowance,  or  payment  of  any 
claim  against  the  United  States,  or  against  any  officer 
thereof,  makes  or  uses,  or  procures  or  advises  the  making 
or  use  of,  any  writing  or  other  paper,  knowing  the  same 
to  contain  any  false  or  fraudulent  statement;  or 

[5]  Who,  for  the  purpose  of  obtaining,  or  aiding  others 
to  obtain,  the  approval,  allowance,  or  payment  of  any 
claim  against  the  United  States  or  any  officer  thereof, 
makes,  or  procures  or  advises  the  making  of,  any  oath 
to  any  fact  or  to  any  writing  or  other  paper,  knowing 
such  oath  to  be  false;  or 

[6]  Who,  for  the  purpose  of  obtaining,  or  aiding  others 
to  obtain,  the  approval,  allowance,  or  payment  of  any 
claim  against  the  United  States  or  any  officer  thereof, 
forges  or  counterfeits,  or  procures  or  advises  the  forging 
or  counterfeiting  of,  any  signature  upon  any  writing  or 
other  paper,  or  uses,  or  procures  or  advises  the  use  of, 
any  such  signature,  knowing  the  same  to  be  forged  or 
counterfeited;  or 

[7]  Who ,  having  charge ,  possession ,  custody ,  or  control 
of  any  money  or  other  property  of  the  United  States, 
furnished  or  intended  for  the  military  service  thereof, 
knowingly  delivers,  or  causes  to  be  delivered,  to  any  per- 
son having  authority  to  receive  the  same,  any  amount 


ARTICLES    OF    WAR.  115 

thereof  less  than  that  for  which  he  receives  a  certificate 
or  receipt;  or 

[8]  Who,  being  authorized  to  make  or  deliver  any 
paper  certifying  the  receipt  of  any  property  of  the 
United  States,  furnished  or  intended  for  the  military 
service  thereof,  makes  or  delivers  to  any  person  such 
writing,  without  having  full  knowledge  of  the  truth  of 
the  statements  therein  contained,  and  with  intent  to 
defraud  the  United  States;  or 

[9]  Who,  steals,  embezzles,  knowingly  and  willfully 
misappropriates,  applies  to  his  own  use  or  benefit,  or 
wrongfully  or  knowingly  sells  or  disposes  of  any  ord- 
nance, arms,  equipments,  ammunition,  clothing,  sub- 
sistence stores,  money,  or  other  property  of  the  United 
States,  furnished  or  intended  for  the  military  service 
thereof;  or 

[10]  Who  knowingly  purchases,  or  receives  in  pledge 
for  any  obligation  or  indebtedness,  from  any  soldier, 
officer,  or  other  person  who  is  a  part  of  or  employed  in  said 
forces  or  service,  any  ordnance,  arms,  equipments,  am- 
munition, clothing,  subsistence  stores,  or  other  property 
of  the  United  States,  such  soldier,  officer,  or  other  person 
not  having  lawful  right  to  sell  or  pledge  the  same, 

Shall,  on  conviction  thereof,  be  punished  by  fine  or 
imprisonment,  or  by  such  other  punishment  as  a  court- 
martial  may  adjudge,  or  by  any  or  all  of  said  penalties.^ 
And  if  any  person,  being  guilty  of  any  of  the  offenses 
aforesaid,  while  in  the  military  service  of  the  United 
States,  receives  his  discharge,  or  is  dismissed  from  the 
service,  he  shall  continue  to  be  liable  to  be  arrested  and 
held  for  trial  and  sentence  by  a  court-martial,  in  the 
same  manner  and  to  the  same  extent  as  if  he  had  not 
received  such  discharge  nor  been  dismissed. 

Art.  61.  Any  officer  who  is  convicted  of  conduct  un- 
becoming an  officer  and  a  gentleman  shall  be  dismissed 
from  the  service. 

Art.  62.  All  crimes  not  capital,  and  all  disorders  and 

iThe  words  in  italics  were  added  by  act  of  March  "2,  1901,  page  VS.i^^jost. 


116  ARTICLES    OF   WAR. 

neglects,  which  officers  and  soldiers  may  be  guilty  of, 
to  the  prejudice  of  good  order  and  military  discipline, 
though  not  mentioned  in  the  foregoing  Articles  of  War, 
are  to  be  taken  cognizance  of  by  a  general,  or  a  regi- 
mental, garrison,  or  field  officers'  ^  court-martial,  accord- 
ing to  the  nature  and  degree  of  the  offense, -and  punished 
at  the  discretion  of  such  court. - 

Art.  63.  All  retainers  to  the  camp,  and  all  persons 
serving  with  the  armies  of  the  United  States  in  the  field, 
though  not  enlisted  soldiers,  are  to  be  subject  to  orders 
according  to  the  rules  and  discipline  of  war. 

Art.  64.  The  officers  and  soldiers  of  any  troops, 
whether  militia  or  others,  mustered  and  in  pay  of  the 
United  States,  shall,  at  all  times  and  in  all  places,  be 
governed  by  the  Articles  of  War,  and  shall  be  subject 
to  be  tried  by  courts-martial. 

Art.  65.  Officers  charged  with  crime  shall  be  arrested 
and  confined  in  their  barracks,  quarters,  or  tents,  and 
deprived  of  their  swords  by  the  commanding  officer. 
And  any  officer  who  leaves  his  confinement  before  he  is 
set  at  liberty  by  his  commanding  officer  shall  be  dis- 
missed from  the  service. 

Art.  66.  Soldiers  charged  with  crimes  shall  be  con- 
fined until  tried  by  court-martial,  or  released  by  proper 
authority. 

Art.  67.  No  provost  marshal,  or  officer  commanding 
a  guard,  shall  refuse  to  receive  or  keep  any  prisoner 
committed  to  his  charge  by  an  officer  belonging  to  the 
forces  of  the  United  States;  provided  the  officer  com- 
mitting shall,  at  the  same  time,  deliver  an  account  in 
writing,  signed  by  himself,  of  the  crime  charged  against 
the  prisoner. 

1  The  "field  officer's "  court  was  abolished  by  sec.  2  of  the  summary  court 
act  of  June  18,  1898,  page  130,  post. 

2  "  Sec.  3.  Tliat  fraudulent  enlistment,  and  the  receipt  of  any  pay  or  allow- 
ance thereunder,  is  hereby  declared  a  military  offense  and  made  punishable 
by  court-martial,  under  the  02d  Article  of  War."  (Act  of  July  27, 1892;  see 
G.  0.  57,  A.  G.  0.,  1892.)  For  definition  of  fraudulent  enlistment,  see  page 
14,  note  4,  ante,  and  for  forms  for  charges  see  page  li2,  post. 


ARTICLES    OF    WAR.  117 

Art.  68.  Every  officer  to  whose  charge  a  prisoner  is 
committed  shall,  within  twenty-four  hours  after  such 
commitment,  or  as  soon  as  he  is  relieved  from  his  guard, 
report  in  writing,  to  the  commanding  officer,  the  name 
of  such  prisoner,  the  crime  charged  against  him,  and 
the  name  of  the  officer  committing  him;  and  if  he  fails 
to  make  such  report,  he  shall  be  punished  as  a  court- 
martial  may  direct. 

Art.  69.  Any  officer  who  presumes,  without  proper 
authority,  to  release  any  prisoner  committed  to  his 
charge,  or  suffers  any  prisoner  so  committed  to  escape, 
shall  be  punished  as  a  court-martial  may  direct. 

Art.  70.  No  officer  or  soldier  put  in  arrest  shall  be 
continued  in  confinement  more  than  eight  days,  or  until 
such  time  as  a  court-martial  can  be  assembled. 

Art.  71.  When  an  officer  is  put  in  arrest  for  the  pur- 
pose of  trial,  except  at  remote  military  posts  or  stations, 
the  officer  by  whose  order  he  is  arrested  shall  see  that  a 
copy  of  the  charges  on  which  he  is  to  be  tried  is  served 
upon  him  within  eight  days  after  his  arrest,  and  that  he 
is  brought  to  trial  within  ten  days  thereafter,  unless  the 
necessities  of  the  service  prevent  such  trial;  and  then 
he  shall  be  brought  to  trial  within  thirty  days  after  the 
expiration  of  said  ten  days.  If  a  copy  of  the  charges  be 
not  served,  or  the  arrested  officer  be  not  brought  to  trial, 
as  herein  required,  the  arrest  shall  cease.  But  officers 
released  from  arrest,  under  the  provisions  of  this  article, 
may  be  tried,  whenever  the  exigencies  of  the  service 
shall  permit,  within  twelve  months  after  such  release 
from  arrest. 

Art.  72.  Any  general  officer  commanding  an  army,  a 
Territorial  division  or  a  department,  or  colonel  com- 
manding a  separate  department,  may  appoint  general 
courts-martial  whenever  necessary.  But  when  any  such 
commander  is  the  accuser  or  prosecutor  of  any  officer 
under  his  command  the  court  shall  be  appointed  by  the 
President;  and  its  proceedings  and  sentence  shall  be 
sent  directly  to  the  Secretary  of  War,  by  whom  the)/ 


118  ARTICLES    OF    WAR. 

shall  be  laid  before  the  President  for  his  approval  or 
orders  in  the  case.^ 

Art.  73.  In  time  of  war  the  commander  of  a  division, 
or  of  a  separate  brigade  of  troops,  shall  be  competent  to 
appoint  a  general  court-martial.  But  when  such  com- 
mander is  the  accuser  or  prosecutor  of  any  person  under 
his  command,  the  court  shall  be  appointed  by  the  next 
higher  commander. 

Art.  74.  Officers  who  may  appoint  a  court-martial 
shall  be  competent  to  appoint  a  judge-advocate  for  the 
same. 

Art.  75.  General  courts-martial  may  consist  of  any 
number  of  officers  from  five  to  thirteen,  inclusive;  but 
they  shall  not  consist  of  less  than  thirteen,  when  that 
number  can  be  convened  without  manifest  injury  to 
the  service. 

Art.  76.  When  the  requisite  number  of  officers  to 
form  a  general  court-martial  is  not  present  in  any  post 
or  detachment,  the  commanding  officer  shall,  in  cases 
which  require  the  cognizance  of  such  a  court,  report  to 
the  commanding  officer  of  the  department,  who  shall 
thereupon  order  a  court  to  be  assembled  at  the  nearest 
post  or  department  at  which  there  may  be  such  a 
requisite  number  of  officers,  and  shall  order  the  party 
accused,  with  necessary  witnesses  to  be  transported  to 
the  place  where  the  said  court  shall  be  assembled. 

Art.  77.  Officers  of  the  Regular  Army  shall  not  be 
competent  to  sit  on  courts-martial  to  try  the  officers  or 
soldiers  of  other  forces,  except  as  provided  in  Article  78. 

Art.  78.  Officers  of  the  Marine  Corps,  detached  for 
service  with  the  Army  by  order  of  the  President,. may 
be  associated  with  officers  of  the  Regular  Army  on 
courts-martial  for  the  trial  of  offenders  belonging  to 
the  Regular  Army,  or  to  forces  of  the  Marine  Corps  so 
detached;  and  in  such  cases  the  orders  of  the  senior 
officer  of  either  corps,  who  may  be  present  and  duly 
authorized,  shall  be  obeyed. 


Act  of  July  5,  1884;  see  G.  0.  73,  A.  G.  0.,  1884. 


ARTICLES   OF   WAR.  119 

Art.  79.  Officers  shall  be  tried  only  by  general  courts- 
martial;  and  no  officer  shall,  when  it  can  be  avoided,  be 
tried  by  officers  inferior  to  him  in  rank.^ 

Art.  81.  Every  officer  commanding  aregiment  or  corps 
shall,  subject  to  the  provisions  of  Article  80,  be  com- 
petent to  appoint,  for  his  own  regiment  or  corps,  courts- 
martial,  consisting  of  three  officers,  to  try  offenses  not 
capital. 

Art.  82.  Every  officer  commanding  a  garrison,  fort,  or 
other  place,  where  the  troops  consist  of  different  corps, 
shall,  subject  to  the  xirovisions  of  Article  80,  be  compe- 
tent to  appoint,  for  such  garrison  or  other  place,  courts- 
martial,  consisting  of  three  officers,  to  try  offenses  not 
capital. 

Art.  83.  Regimental  and  garrison  courts-martial  and 
summary  courts,  detailed  under  existing  laws  to  try 
enlisted  men,  shall  not  have  power  to  try  capital  cases 
or  commissioned  officers,  but  shall  have  power  to  award 
punishment  not  to  exceed  confinement  at  hard  labor  for 
three  months  or  forfeiture  of  three  months'  pay,  or  both, 
and  in  addition  thereto,  in  the  case  of  noncommissioned 
officers,  reduction  to  the  ranks,  and  in  the  case  of  first- 
class  privates  reduction  to  second-class  privates:  Pro- 
vided, That  a  summary  court  shall  not  adjudge  confine- 
ment and  forfeiture  in  excess  of  a  period  of  one  month 
unless  the  accused  shall  before  trial  consent  in  writing 
to  trial  by  said  court,  but  in  any  case  of  refusal  to  so 
consent  the  trial  may  be  had  either  by  general,  regi- 
mental, or  garrison  court-martial,  or  by  said  summary 
court,  but  in  case  of  trial  by  said  summary  court  with- 
out consent  as  aforesaid  the  court  shall  not  adjudge 
confinement  or  forfeiture  of  pay  for  more  than  one 
month.  - 

Art.  84.  The  judge-advocate  shall  administer  to  each 
member  of  the  court,  before  they  proceed  upon  any  trial, 
the  following  oath,  which  shall  also  be  taken  by  all  mem- 
bers of  regimental  and  garrison  courts-martial:  "  You, 

1  Art.  80  lepejiled  l.y  art  uf  Jinio  18,  1898,  sec.  2,  paj;.'  130,  post. 
-83.1  A.  W.,  Ks  aiiiciided  by  ait  of  iAIarch  2,  1901,  page  n2,piM. 


120  ARTICLES    OF   WAR. 

A  B.  do  swear  that  you  will  well  and  truly  try  and 
detennine,  according  to  evidence,  the  matter  now  before 
you,  between  the  United  States  of  America  and  the 
prisoner  to  be  tried,  and  that  you  will  duly  administer 
justice,  without  partiality,  favor,  or  affection,  accord- 
ing to  the  provisions  of  the  rules  and  articles  for  the 
government  of  the  armies  of  the  United  States,  and  if 
any  doubt  should  arise,  B*ot  explained  by  said  articles, 
then  according  to  your  conscience,  the  best  of  your 
understanding,  and  the  custom  of  war  in  like  cases:  and 
you  do  further  swear  that  you  will  not  divulge  the 
sentence  of  the  court  until  it  shall  be  published  by  the 
proper  authority,  except  to  the  judge-advocate;  neither 
will  you  disclose  or  discover  the  vote  or  opinion  of  any 
particular  member  of  the  court-martial,  unless  required 
to  give  evidence  thereof,  as  a  witness,  by  a  court  of 
justice,  in  due  course  of  law.     So  help  you  God." 

Art.  85.  When  the  oath  has  been  administered  to  the 
members  of  a  court-martial,  the  president  of  the  court 
shall  administer  to  the  judge-advocate,  or  person 
officiating  as  such,  an  oath  in  the  following  form:  " '  You, 
A  B,  do  swear  that  you  will  not  disclose  or  discover  the 
vote  or  opinion  of  any  particular  member  of  the  court- 
martial,  unless  required  to  give  evidence  thereof,  as  a 
witness,  by  a  court  of  justice,  in  due  course  of  law;  nor 
divulge  the  sentence  of  the  court  to  any  but  the  proper 
authority,  until  it  shall  be  duly  disclosed  by  the  same. 
So  help  you  God." 

Art.  86.  A  court-martial  may  punish,  at  discretion, 
any  person  who  uses  any  menacing  words,  signs,  or 
gestures,  in  its  presence,  or  who  disturbs  its  proceedings 
by  any  riot  or  disorder. 

Art.  87.  All  members  of  a  court-martial  are  to  behave 
with  decency  and  calmness. 

Art.  88.  Members  of  a  court-martial  may  be  chal- 
lenged by  a  prisoner,  but  only  for  cause  stated  to  the 
court.  The  court  shall  determine  the  relevancy  and 
validity  thereof,  and  shall  not  receive  a  challenge  to 
more  than  one  member  at  a  time. 


ARTICLES   OP   WAR.  121 

Art.  89.  When  a  prisoner,  arraigned  before  a  general 
court-martial,  from  obstinacy  and  deliberate  design, 
stands  mute  or  answers  foreign  to  the  purpose,  the 
court  may  proceed  to  trial  and  judgment  as  if  the  pris- 
oner had  pleaded  not  guilty. 

Art.  90.  The  judge-advocate,  or  some  person  deputed 
by  him,  or  by  the  general  or  officer  commanding  the 
Army,  detachment,  or  garrison,  shall  prosecute  in  the 
name  of  the  United  States,  but  when  the  prisoner  has 
made  his  plea,  he  shall  so  far  consider  himself  counsel 
for  the  prisoner  as  to  object  to  any  leading  question  to 
any  of  the  witnesses,  and  to  any  question  to  the  prisoner 
the  answer  to  which  might  tend  to  criminate  himself. 

Art.  91.  The  depositions  of  witnesses  residing  beyond 
the  limits  of  the  State,  Territory,  or  District  in  which 
any  military  court  may  be  ordered  to  sit,  if  taken  on 
reasonable  notice  to  the  opposite  party  and  duly  authen- 
ticated, may  be  read  in  evidence  before  such  court  in 
cases  not  capital.^ 

Art.  92.  All  persons  who  give  evidence  before  a  court- 
martial  shall  be  examined  on  oath,  or  affirmation,  in  the 
following  form:  "You  swear  (or  affirm)  that  the  evi- 
dence you  shall  give,  in  the  case  now  in  hearing,  shall 
be  the  truth,  the  whole  truth,  and  nothing  but  the 
truth.     So  help  you  God." 

Art.  93.  A  court-martial  shall,  for  reasonable  cause, 
grant  a  continuance  to  either  party,  for  such  time,  and 
as  often,  as  may  appear  to  be  just:  Provided,  That  if 
the  prisoner  be  in  close  confinement,  the  trial  shall  not 
be  delayed  for  a  period  longer  than  sixty  days.^ 

Art.  95.  Members  of  a  court-martial,  in  giving  their 
votes,  shall  begin  with  the  youngest  in  commission. 

1"Sec.  4.  That  judge-advocates  of  departments  and  of  courts-martial, 
and  the  trial  officers  of  summary  courts,  are  hereby  authorized  to  adminis- 
ter oaths  for  the  purposes  of  the  administration  of  military  justice,  and  for 
other  purposes  of  military  administration."  (Act  of  July  27,  1892;  see 
G.  0.  57,  A.G.O.,  1892.) 

-'Art.  91  repealed  by  act  of  March  2,  1901,  sec.  2,  page  132,  pud. 


122  ARTICLES    OF    WAR. 

Art.  96.  No  person  shall  be  sentenced  to  suffer  death, 
except  by  the  concurrence  of  two-thirds  of  the  members 
of  a  general  court-martial,  and  in  the  cases  herein 
expressly  mentioned. 

Art.  97.  No  person  in  the  military  service  shall,  under 
the  sentence  of  a  court-martial,  be  punished  by  confine- 
ment in  a  penitentiary,  unless  the  offense  of  which  he 
may  be  convicted  would,  by  some  statute  of  the  United 
States,  or  by  some  statute  of  the  State,  Territory,  or 
District  in  which  such  offense  may  be  committed,  or 
by  the  common  law,  as  the  same  exists  in  such  State, 
Territory,  or  District,  subject  such  convict  to  such 
punishment. 

Art.  98.  No  person  in  the  military  service  shall  be 
punished  by  flogging,  or  by  branding,  marking,  or  tat- 
tooing on  the  body. 

Art.  99.  No  officer  shall  be  discharged  or  dismissed 
from  the  service,  except  by  order  of  the  President,  or 
by  sentence  of  a  general  court-martial;  and  in  time  of 
peace  no  officer  shall  be  dismissed,  except  in  pursuance 
of  the  sentence  of  a  court-martial,  or  in  mitigation 
thereof. 

Art.  100.  When  an  officer  is  dismissed  from  the  serv- 
ice for  cowardice  or  fraud,  the  sentence  shall  further 
direct  that  the  crime,  punishment,  name  and  place  of 
abode  of  the  delinquent  shall  be  published  in  the  news- 
papers in  and  about  the  camp,  and  in  the  State  from 
which  the  offender  came,  or  where  he  usually  resides; 
and  after  such  publication  it  shall  be  scandalous  for  an 
officer  to  associate  with  him. 

Art.  101.  When  a  court-martial  suspends  an  officer 
from  command  it  may  also  suspend  his  pay  and  emolu- 
ments for  the  same  time,  according  to  the  nature  of  his 
offense. 

Art.  102.  No  person  shall  be  tried  a  second  time  for 
the  same  offense. 

■    Art.  103.  No  person  shall  be  liable  to  be  tried  and 
punished  by  a  general  court-martial  for  any  offense 


ARTICLES    OF   WAR.  123 

which  appears  to  have  been  committed  more  than  two 
years  before  the  issuing  of  the  order  for  such  trial, 
unless,  by  reason  of  having  absented  himself,  or  of  some 
other  manifest  impediment,  he  shall  not  have  been 
amenable  to  justice  within  that  period. 

No  person  shall  be  tried  or  punished  by  a  court- 
martial  for  desertion  in  time  of  peace  and  not  in  the 
face  of  an  enemy,  committed  more  than  two  years 
before  the  arraignment  of  such  person  for  such  offense, 
unless  he  shall  meanwhile  have  absented  himself  from 
the  United  States,  in  which  case  the  time  of  his  absence 
shall  be  excluded  in  computing  the  period  of  the  limi- 
tation: Provided,  That  said  limitation  shall  not  begin 
until  the  end  of  the  term  for  which  said  person  was 
mustered  into  the  service.^ 

Art.  104.  No  sentence  of  a  court-martial  shall  be 
carried  into  execution  until  the  same  shall  have  been 
approved  by  the  officer  ordering  the  court,  or  by  the 
officer  commanding  for  the  time  being. - 

Art.  105.  No  sentence  of  a  court-martial,  inflicting 
the  punishment  of  death,  shall  be  carried  into  execution 
until  it  shall  have  been  confirmed  by  the  President; 
except  in  the  cases  of  persons  convicted  in  time  of  war, 
as  spies,  mutineers,  deserters,  or  murderers,  and  in  the 
cases  of  guerrilla  marauders,  convicted  in  time  of  war, 
of  robbery,  burglary,  arson,  rape,  assault  with  intent 
to  commit  rape,  or  of  violation  of  the  laws  and  customs 
of  war;  and  in  such  excepted  cases  the  sentence  of  death 
may  be  carried  into  execution  upon  confirmation  by 
the  commanding  general  in  the  field,  or  the  commander 
of  the  department,  as  the  case  may  be. 

Art.  106.  In  time  of  peace  no  sentence  of  a  court- 
martial,  directing  the  dismissal  of  an  officer,  shall  be 
carried  into  execution,  until  it  shall  have  been  con- 
firmed by  the  President. 

1 103d  A.  W.,  as  amended  by  act  of  April  11,  1890;  see  G.  0.  45,  A.  C.  O., 
1890. 

•-  101th  A.  W.,  as  amended  by  act  of  July  27,  1S92;  see  G.  O.  37,  A.  G.  O., 
1892. 


124  ARTICLES    OF   WAR. 

Art.  107.  No  sentence  of  a  court-martial  appointed 
by  the  commander  of  a  division  or  of  a  separate  brigade 
of  troops,  directing  the  dismissal  of  an  officer,  shall  be 
carried  into  execution  until  it  shall  have  been  confirmed 
by  the  general  commanding  the  army  in  the  field  to 
which  the  division  or  brigade  belongs. 

Art.  108.  No  sentence  of  a  court-martial,  either  in 
time  of  peace  or  in  time  of  war,  respecting  a  general 
officer,  shall  be  carried  into  execution  until  it  shall  have 
been  confirmed  by  the  President. 

Art.  109.  All  sentences  of  a  court-martial  may  be 
confirmed  and  carried  into  execution  by  the  officer 
ordering  the  court,  or  by  the  officer  commanding  for 
the  time  being,  where  confirmation  by  the  President  or 
by  the  commanding  general  in  the  field,  or  commander 
of  the  department,  is  not  required  by  these  articles.^ 

Art.  111.  Any  officer  who  has  authority  to  carry  into 
execution  the  sentence  of  death,  or  of  dismissal  of  an 
officer,  may  suspend  the  same  until  the  pleasure  of  the 
President  shall  be  known;  and,  in  such  case,  he  shall 
immediately  transmit  to  the  President  a  copy  of  the 
order  of  suspension,  together  with  a  copy  of  the  pro- 
ceedings of  the  court. 

Art.  112.  Every  officer  who  is  authorized  to  order  a 
general  court-martial  shall  have  power  to  pardon  or 
mitigate  any  punishment  adjudged  by  it,  except  the 
punishment  of  death  or  of  dismissal  of  an  officer.  Every 
officer  commanding  a  regiment  or  garrison  in  which  a 
regimental  or  garrison  court-martial  may  be  held  shall 
have  power  to  pardon  or  mitigate  any  punishment  which 
such  court  may  ad  judge. - 

Art.  113.  Every  judge-advocate,  or  person  acting  as 
such,  at  any  general  court-martial,  shall,  with  as  much 
expedition  as  the  opportunity  of  time  and  distance  of 
place  may  admit,  forward  the  original  proceedings  and 
sentence  of  such  court  to  the  Judge- Advocate-General 


1  Article  110  repealed  by  act  of  Juue  18,  1898,  sec.  2,  page  1^0,  post. 
2 See  par.  951,  A.  R. 


ARTICLES    OF   WAR.  12i> 

of  the  Army,  in  whose  office  they  shall  be  carefully 
preserved. 

Art.  114.  Every  party  tried  by  a  general  court-martial 
shall,  upon  demand  thereof  made  by  himself  or  by  any 
person  in  his  behalf,  be  entitled  to  a  copy  of  the  proceed- 
ings and  sentence  of  such  court. 

Art.  115.  A  court  of  inquiry  to  examine  into  the 
nature  of  any  transaction  of,  or  accusation  or  imputa- 
tion against,  any  officer  or  soldier,  may  be  ordered  by 
the  President  or  by  any  commanding  officer;  but,  as 
courts  of  inquiry  may  be  perverted  to  dishonorable  pur- 
poses, and  may  be  employed,  in  the  hands  of  weak  and 
envious  commandants,  as  engines  for  the  destruction  of 
military  merit,  they  shall  never  be  ordered  by  any  com- 
manding officer  except  upon  a  demand  by  the  officer  or 
soldier  whose  conduct  is  to  be  inquired  of. 

Art.  116.  A  court  of  inquiry  shall  consist  of  one  or 
more  officers,  not  exceeding  three,  and  a  recorder,  to 
reduce  the  proceedings  and  evidence  to  writing. 

Art.  117.  The  recorder  of  a  court  of  inquiry  shall 
administer  to  the  members  the  following  oath:  "'You 
shall  well  and  truly  examine  and  inquire,  according  to 
the  evidence,  into  the  matter  now  before  you,  without 
partiality,  favor,  affection,  prejudice,  or  hope  of  reward. 
So  help  you  God."  After  which  the  president  of  the 
court  shall  administer  to  the  recorder  the  following 
oath:  "  You,  A  B,  do  swear  that  you  will,  according  to 
your  best  abilities,  accurately  and  impartially  record 
the  proceedings  of  the  court  and  the  evidence  to  be 
given  in  the  case  in  hearing.     So  help  you  God." 

Art.  1 18.  A  court  of  inquiry,  and  the  recorder  thereof, 
shall  have  the  same  power  to  summon  and  examine 
witnesses  as  is  given  to  courts-martial  and  the  judge- 
advocates  thereof.  Such  witnesses  shall  take  the  same 
oath  which  is  taken  by  witnesses  before  courts-martial, 
and  the  party  accused  shall  be  permitted  to  examine  and 
cross-examine  them,  so  as  fully  to  investigate  the  cir- 
cumstances in  question. 


126  ARTICLES   OF   WAR. 

Art.  119.  A  court  of  inquiry  shall  not  give  an  opinion 
on  the  merits  of  the  case  inquired  of  unless  specially 
ordered  to  do  so. 

Art.  120.  The  proceedings  of  a  court  of  inquiry 
must  be  authenticated  by  the  signatures  of  the  recorder 
and  the  president  thereof,  and  delivered  to  the  com- 
manding officer. 

Art.  121.  The  proceedings  of  a  court  of  inquiry  may 
be  admitted  as  evidence  by  a  court-martial,  in  cases 
not  capital  nor  extending  to  the  dismissal  of  an  officer: 
Provided,  That  the  circumstances  are  such  that  oral 
testimony  can  not  be  obtained. 

Art.  122.  If,  upon  marches,  guards,  or  in  quarters, 
different  corps  of  the  army  happen  to  join  or  do  duty 
together,  the  officer  highest  in  rank  of  the  line  of  the 
Army,  Marine  Corps,  organized  militia,  or  volunteers, 
by  commission,  there  on  duty  or  in  quarters,  shall  com- 
mand the  whole,  and  give  orders  for  what  is  needful  in 
the  service,  unless  otherwise  specially  directed  by  the 
President,  according  to  the  nature  of  the  case.^ 

Art.  124.  Officers  of  the  organized  militia  of  the 
several  States,  when  called  into  the  service  of  the  United 
States,  shall  on  all  detachments,  courts-martial,  and 
other  duty,  wherein  they  maybe  employed  in  conjunc- 
tion with  the  regular  or  volunteer  forces  of  the  United 
States,  take  rank  next  after  all  officers  of  the  like  grade 
in  said  regular  forces,  and  shall  take  precedence  of  all 
officers  of  volunteers  of  equal  or  inferior  rank,  notwith- 
standing the  commissions  of  such  militia  officers  may 
be  older  than  the  commissions  of  the  said  officers  of  the 
regular  forces  of  the  United  States. ^ 

Art,  125.  In  case  of  the  death  of  any  officer,  the  ma- 
jor of  his  regiment,  or  the  officer  doing  the  major's  duty, 
or  the  second  officer  in  command  at  any  post  or  garrison, 
as  the  case  may  be,  shall  immediately  secure  all  his 

il22d  A.  W.,  as  amended  by  act  of  March  8,  iniO;  see  G.  0.  43,  W.  D., 
1910.     Article  123  repealed  by  same  act. 
2124th  A.  W.,  as  amended  by  act  of  March  8,  1910, 


OTHER   STATUTORY   PROVISIONS.  127 

effects  then  in  camp  or  quarters,  and  shall  make,  and 
transmit  to  the  office  of  the  Department  of  War,  an 
inventory  thereof. 

Art.  126.  In  case  of  the  death  of  any  soldier,  the  com- 
manding officer  of  his  troop,  battery,  or  company  shall 
immediately  secure  all  his  effects  then  in  camp  or  quar- 
ters, and  shall,  in  the  presence  of  two  other  officers, 
make  an  inventory  thereof,  which  he  shall  transmit  to 
the  office  of  the  Department  of  War. 

Art.  127.  Officers  charged  with  the  care  of  the  effects 
of  deceased  officers  or  soldiers  shall  account  for  and  de- 
liver the  same,  or  the  proceeds  thereof,  to  the  legal  rep- 
resentatives of  such  deceased  officers  or  soldiers.  And 
no  officer  so  charged  shall  be  permitted  to  quit  the  regi- 
ment or  post  until  he  has  deposited  in  the  hands  of  the 
commanding  officer  all  the  effects  of  such  deceased  offi- 
cers or  soldiers  not  so  accounted  for  and  delivered. 

Art.  128.  The  foregoing  articles  shall  be  read  and 
published,  once  in  every  six  months,  to  every  garrison 
regiment,  troop,  or  company  in  the  service  of  the  Unites 
States,  and  shall  be  duly  observed  and  obeyed  by 
officers  and  soldiers  in  said  service. 

OTHER    STATUTORY    PROVISIONS    DEFINIJiG  ^^ 
COURT-MARTIAU    OFFEXSES. 

Sec.  1343,  R.  S.  "All  persons  who,  in  time  of  war,  or 
of  rebellion  against  the  supreme  authority  of  the  United 
States,  shall  be  found  lurking  or  acting  as  spies,  in  or 
about  any  of  the  fortifications,  posts,  quarters,  or  en- 
campments of  any  of  the  armies  of  the  United  States,  or 
elsewhere,  shall  be  triable  by  a  general  court-martial, 
or  by  a  military  commission,  and  shall,  on  conviction 
thereof,  suffer  death." 

Sec.  5306,  R.  S.  "  Every  officer  of  the  United  States, 
civil,  military,  or  naval,  and  every  sutler,  soldier ,  marine, 
or  other  person,  who  takes,  or  causes  to  be  taken  into 
a  State  declared  to  be  in  insurrection,  or  to  any  other 
point  to  be  thence  taken  into  such  State,  or  who  trans- 
ports or  sells,  or  otherwise  disposes  of  therein,  any  goods. 


128  OTHER    STATUTORY    PROVISIONS. 

wares,  or  merchandise  whatsoever,  except  in  pursuance 
of  license  and  authority  of  the  President,  as  provided  in 
this  title  [see  sec.  5304 J ,  or  who  makes  any  false  state- 
ment or  representation  upon  which  license  and  authority 
is  granted  for  such  transportation,  sale,  or  other  disposi- 
tion, or  who,  under  any  license  or  authority  obtained, 
willfully  and  knowingly  transports,  sells,  or  otherwise 
disposes  of  any  other  goods,  wares,  or  merchandise  than 
such  as  are  in  good  faith  so  licensed  and  authorized,  or 
who  willfully  and  knowingly  transports,  sells,  or  dis- 
poses of  the  same,  or  any  portion  thereof,  in  violation  of 
the  terms  of  such  license  or  authority,  or  of  any  rule  or 
regulation  prescribed  by  the  Secretary  of  the  Treasury 
concerning  the  same,  or  who  is  guilty  of  any  act  of  em- 
bezzlement, of  willful  misappropriation  of  public  or  pri- 
vate money  or  property,  of  keeping  false  accounts,  or  of 
willfully  making  any  false  returns,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  shall  be  fined  not  more 
than  five  thousand  dollars,  and  imprisoned  in  the  peni- 
tentiary not  more  than  three  years.  Violations  of  this 
section  shall  be  cognizable  before  any  court,  civil  or 
military,  competent  to  try  the  same." 

Sec.  5313,  R.  S.  "All  persons  in  the  military  or  naval 
service  of  the  United  States  are  prohibited  from  buying 
or  selling,  trading,  or  in  any  way  dealing  in  captured 
or  abandoned  property,  whereby  they  shall  receive  or 
expect  any  profit,  benefit,  or  advantage  to  themselves,  or 
any  other  person,  directly  or  indirectly  connected  with 
them,  and  it  shall  be  the  duty  of  such  person  whenever 
such  property  comes  into  his  possession  or  custody,  or 
within  his  control,  to  give  notice  thereof  to  some  agent, 
appointed  by  virtue  of  this  title  [see  sec.  5305] ,  and  to 
turn  the  same  over  to  such  agent  without  delay.  Any 
officer  of  the  United  States,  civil,  military,  or  naval,  or 
any  sutler,  soldier,  or  marine,  or  other  person  who  shall 
violate  any  provision  of  this  section  shall  be  deemed 
guilty  of  a  misdemeanor,  and  shall  be  fined  not  more 
than  five  thousand  dollars,  and  imprisoned  in  the  pen- 
itentiary not  more  than  three  years.     Violations  of  this 


SUMMARY    COURT   ACT.  139 

section  shall  be  cognizable  before  any  court,  civil  or 
military,  competent  to  try  the  same." 

ACT  ESTABLISHING  THE  SUMMARY  COURT. 

Be  it  enacted,  etc.,  That  the  Act  entitled  "  An  act  to 
promote  the  administration  of  justice  in  the  Army," 
approved  October  first,  eighteen  hundred  and  ninety,  as 
supplemented  and  amended  by  subsequent  legislation, 
be,  and  the  same  is  hereby,  amended  so  as  to  read  as 
follows: 

"  That  the  commanding  officer  of  each  garrison,  fort, 
or  other  place,  regiment  or  corps,  detached  battalion,  or 
company,  or  other  detachment  in  the  Army,  shall  have 
power  to  appoint  for  such  place  or  command,  or  in  his 
discretion  for  each  battalion  thereof,  a  summary  court 
to  consist  of  one  officer  to  be  designated  by  him,  before 
whom  enlisted  men  ^  who  are  to  be  tried  for  offenses, 
such  as  were  prior  to  the  passage  of  the  Act  'to  promote 
the  administration  of  justice  in  the  Army,'  approved 
October  first,  eighteen  hundred  and  ninety,  cognizable 
by  garrison  or  regimental  courts-martial,  and  offenses 
cognizable  by  field  officers  detailed  to  try  offenders  under 
the  provisions  of  the  eightieth  and  one  hundred  and 
tenth  articles  of  war,  shall  be  brought  to  trial  within 
twenty-four  hours  of  the  time  of  the  arrest,  or  as  soon 
thereafter  as  practicable,  except  when  the  accused  is  to 
be  tried  by  general  court-martial;  but  such  summary 
court  may  be  appointed  and  the  officer  designated  by 
superior  authority  when  by  him  deemed  desirable;  and 
the  officer  holding  the  summary  court  shall  have  power 
to  administer  oaths  and  to  hear  and  determine  such 
cases,  and  when  satisfied  of  the  guilt  of  the  accused  ad- 
judge the  punishment  to  be  infiicted,  which  said  pun- 
ishment shall  not  exceed  confinement  at  hard  labor  for 
one  month  and  forfeiture  of  one  month's  pay,  and,  in 
the  case  of  a  noncommissioned  officer,  reduction  to  the 

1  Retainers  to  the  camp  and  other  chisses  of  persons  mentioned  in  the  63d 
A.  W.  are  not  triable  by  summary  court. 


130  SUMMARY    COURT   ACT. 

ranks  in  addition  thereto;  that  there  shall  be  a  summary 
court  record  kept  at  each  military  post  and  in  the  field 
at  the  headquarters  of  the  proper  command,  in  which 
shall  be  entered  a  record  of  all  cases  heard  and  deter- 
mined and  the  action  had  thereon;  and  no  sentence  ad- 
judged by  said  summary  court  shall  be  executed  until 
it  shall  have  been  approved  by  the  officer  appointing  the 
court,  or  by  the  officer  commanding  for  the  time  being: 
Provided,  That  when  but  one  commissioned  officer  is 
present  with  a  command  he  shall  hear  and  finally  deter- 
mine such  cases:  And  provided  further,  That  no  one 
while  holding  the  privileges  of  a  certificate  of  eligibility 
to  promotion  shall  be  brought  before  a  summary  court, 
and  that  noncommissioned  officers  shall  not,  if  they  ob- 
ject thereto,  be  brought  to  trial  before  summary  courts 
without  the  authority  of  the  officer  competent  to  order 
their  trial  by  general  court-martial,  but  shall  in  such 
cases  be  brought  to  trial  before  garrison,  regimental,  or 
general  courts-martial,  as  the  case  may  be." 

Sec.  2.  That  articles  eighty  and  one  hundred  and  ten 
of  the  Rules  and  Articles  for  the  Government  of  the 
Armies  of  the  United  States  be,  and  the  same  are  hereby, 
repealed. 

Sec.  3.  That  the  commanding  officers  authorized  to 
approve  the  sentences  of  summary  courts  and  superior 
authority  shall  have  power  to  remit  or  mitigate  the  same. 

Sec.  4.  That  post  and  other  commanders  shall,  in  time 
of  peace,  on  the  last  day  of  each  month,  make  a  report 
to  the  department  headquarters  of  the  number  of  cases 
determined  by  summary  court  during  the  month,  setting 
forth  the  offenses  committed  and  the  penalties  awarded, 
which  report  shall  be  filed  in  the  office  of  the  judge- 
advocate  of  the  department,  and  may  be  destroyed  when 
no  longer  of  use. 

Sec.  5.  That  soldiers  sentenced  by  court-martial  to 
dishonorable  discharge  and  confinement  shall,  until  dis- 
charged from  such  confinement,  remain  subject  to  the 
Articles  of  War  and  other  laws  relating  to  the  adminis- 
tration of  military  justice. 


ACT    OF   MARCH   2,    1901.  131 

Sec.  6.  That  it  shall  be  lawful  for  any  civil  officer 
having  authority  under  the  laws  of  the  United  States,  or 
of  any  State,  Territory,  or  District,  to  arrest  offenders, 
to  summarily  arrest  a  deserter  from  the  military  service 
of  the  United  States  and  deliver  him  into  the  custody  of 
the  military  authority  of  the  General  Government. 

Sec.  7.  That  this  Act  shall  take  effect  sixty  days 
after  its  passage. 

Approved  June  18, 


ACT  TO  PREVENT  THE  FAILURE  OF  MILITARY 
JUSTICE. 

Be  it  enacted,  etc.,  That  every  person  not  belonging 
to  the  Army  of  the  United  States  who,  being  duly  sub- 
poenaed to  appear  as  a  witness  before  a  general  court- 
martial  of  the  Army,  willfully  neglects  or  refuses  to 
appear,  or  refuses  to  qualify  as  a  witness  or  to  testify  or 
produce  documentary  evidence  which  such  person  may 
have  been  legally  subpoenaed  to  produce,  shall  be  deemed 
guilty  of  a  misdemeanor,  for  which  such  person  shall  be 
punished  on  information  in  the  district  court  of  the 
United  States;  and  it  shall  be  the  duty  of  the  United 
States  district  attorney,  on  the  certification  of  the  facts 
to  him  by  the  general  court-martial,  to  file  an  informa- 
tion against  and  prosecute  the  person  so  offending,  and 
the  punishment  of  such  person,  on  conviction,  shall  be  a 
fine  of  not  more  than  five  hundred  dollars  or  imprison- 
ment not  to  exceed  six  months ,  or  both ,  at  the  discretion  of 
the  court:  Provided,  That  this  shall  not  apply  to  persons 
residing  beyond  the  State,  Territory,  or  District  in  which 
such  general  court-martial  is  held,  and  that  the  fees  of 
such  witness,  and  his  mileage  at  the  rates  provided  for 
witnesses  in  the  United  States  district  court  for  said 
State, Territory ,  or  District  shall  be  duly  paid  or  tendered 
said  witness,  such  amounts  to  be  paid  by  the  Pay  Depart- 
ment of  the  Army  out  of  the  appropriation  for  compen- 
sation of  witnesses:  Provided,  That  no  witness  shall  be 
compelled  to  incriminate  himself  or  to  answer  any  ques- 
tions which  may  tend  to  incriminate  or  degrade  him. 


i;)-2  ACT    OF   MARCH    2,    1901. 

Sec.  2.  That  article  ninety-four,  section  thirteen  hun- 
dred and  forty- two,  of  the  Revised  Statutes  of  the  United 
States  be,  and  the  same  is  hereby,  repealed. 

Sec.  3.  That  section  one  hundred  and  eighty -three  of 
the  Revised  Statutes  of  the  United  States  be,  and  the 
same  is  hereby,  amended  so  as  to  read  as  follows: 

"Sec.  183.  Any  officer  or  clerk  of  any  of  the  depart- 
ments lawfully  detailed  to  investigate  frauds  on,  or  at- 
tempts to  defraud,  the  Government,  or  any  irregularity 
or  misconduct  of  any  officer  or  agent  of  the  United  States, 
and  any  officer  of  the  Army  detailed  to  conduct  an  in- 
vestigation, and  the  recorder,  and,  if  there  be  none,  the 
presiding  officer  of  any  military  board  appointed  for 
such  purpose,  shall  have  authority  to  administer  an  oath 
to  any  witness  attending  to  testify  or  depose  in  the  course 
of  such  investigation." 

Sec.  4.  That  article  eighty- three,  section  thirteen 
hundred  and  forty-two,  of  the  Revised  Statutes  of  the 
United  States  be,  and  the  same  is  hereby,  amended  to 
read  as  follows: 

'  'Article  83.  Regimental  and  garrison  courts-martial 
and  summary  courts  detailed  under  existing  laws  to  try 
enlisted  men  shall  not  have  power  to  try  capital  cases 
or  commissioned  officers,  but  shall  have  power  to  award 
punishment  not  to  exceed  confinement  at  hard  labor  for 
three  months  or  forfeiture  of  three  months'  pay,  or  both, 
and  in  addition  thereto,  in  the  case  of  noncommissioned 
officers  reduction  to  the  ranks  and  in  the  case  of  first- 
class  privates  reduction  to  second-class  privates:  Pro- 
vided, That  a  summary  court  shall  not  adjudge  confine- 
ment and  forfeiture  in  excess  of  a  period  of  one  month, 
unless  the  accused  shall  before  trial  consent  in  writing 
to  trial  by  said  court,  but  in  any  case  of  refusal  to  so 
consent,  the  trial  may  be  had  either  by  general,  regi- 
mental, or  garrison  court-martial,  or  by  said  summary 
court,  but  in  case  of  trial  by  said  summary  court  with- 
out consent  as  aforesaid,  the  court  shall  not  adjudge  con- 
finement or  forfeiture  of  pay  for  more  than  one  month." 


ACT    OF    MARCH   2,    1901.  ]  :):> 

Sec.  5.  That  article  sixty,  section  thirteen  hundred 
and  forty-two,  of  the  Revised  Statutes  of  the  United 
States  be,  and  the  same  is  hereby,  amei^ded  by  inserting 
after  the  words  "shall,  on  conviction  thereof,  be  .pun- 
ished by  fine  or  imprisonment,  or  by  such  other  punish- 
ment as  a  court-martial  may  adjudge,"  the  words  "or 
by  any  or  all  of  said  penalties." 

Approved,  Marcn  2,  1901. 


GENERAL  FORMS. 


FORMS  FOR  CHARGES. 

Charge  and  specification  preferred  against  Private 
A B ,  Co. , U.  S.  Infantry. 

Article  17. 

(a)  Charge:  "Selling  clothing,^  in  violation  of  the 
17th  Article  of  War." 

Specification  :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did  sell  the  following  articles  of  his 

uniform  clothing,  issued  to  him,  viz:  One  (1)  forage  cap, 

value  $ ;  one  (1)  overcoat,  made,  value  | ;  and 

one  (1)  blanket,  woolen,  value  $ ;  total  value  of  ar- 
ticles sold  $ . 

"  This  at ,  on  the of ,  19—." 

C D , 

Captain, Infantry, 

Officer  Preferring  Charge. 
Witnesses: 

1st  Sergeant  E F ,  Co. , Infantry. 

Private  G H ,  Troop , Cavalry. 

Mr.  I K ,  citizen. 


(b)  "Losing  accouterments,  in  violation  of  the  17th 
Article  of  War."^ 

1  See  page  18,  Sec.  Ill,  ante. 

2  The  loss  or  sale  of  ammunition  should  be  charged  under  the  62d  A.  W. 

^  If  a  soldier  is  known  to  have  unlawfully  disposed  of  his  clothing  or  ac- 
couterments in  a  way  not  mentioned  in  the  17th  Article,  the  charge  should 
be  laid  under  the  62d  Article. 

(134) 


FORMS    FOR   CHARGES.  135 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did,  through  neglect,  lose  the  fol- 
lowing articles  of  his  acconterments,  issued  to  him,  viz: 

One  (1) ,  value  $ ;  and  one  (1) ,  value  $ ; 

total  value  of  articles  lost,  $ . 

"  This  at on  the of ,  19—." 

Article  20. 

Charge:  '"Behaving  with  disrespect  toward  his  com- 
manding officer,  in  violation  of  the  20th  Article  of  War. ' ' 

Specification  :  '"In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did  behave  himself  with  disrespect 

toward  his  commanding  officer.  Captain  C D , 

U.  S.  Infantry,  by  {here  insert  language  or  describe 

the  conduct) . 

"  This  at on  the of ,  19—." 

Article  21. 

(a)  Charge:  "Disobedience  of  orders,^  in  violation 
of  the  21st  Article  of  War." 

Specificatio7i :  "In  that  Private  A B ,  Co. , 

U.  S  Infantry,  having  received  a  lawful  command 

from  his  superior  officer,  2d  Lieut.  C D , 

U.  S.  Infantry,  to  {insert  order),  did  willfully  disobey 
the  same. 

"  This  at ,  on  the of ,  19—." 


(6)  "Striking  his  superior  officer,  in  violation  of  the 
21st  Article  of  War." 

Specification :  "  In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did  strike  his  superior  officer,  2d 

Lieut.  C D ,  U.    S.   Infantry,   with  {here 


1 A  noncompliance  by  a  soldier  with  an  order  emanating  from  a  contract 
surgeon,  a  dental  surgeon,  a  veterinarian,  or  noncommissioned  officer 
is  not  an  offense  under  this  article,  but  one  to  be  charged,  in  general, 
under  the  62d.  A  simple  neglect  to  comply  with  a  standing  order  is  an 
offense  under  the  62d  Article,  and  not  uuder  the  21st,  which  implies  a  will- 
ful defiancp  of  authority.  See  note  page  lOB,  ante,  as  to  disobedience  of  an 
order  l)y  a  military  convict. 


13G  FORMS    FOR    CHARGES. 

describe  tlte  offense)  the  said  lieutenant  being   in  the 
execution  of  his  office. 
"  This  at ,  on  the of  ,  19—." 

Article  24. 

Charge  :  "  Disobedience  of  orders,  in  violation  of  the 
24th  Article  of  War." 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  being  present  and  taking  part  in  a 

(quarrel,  fray  or  disorder)  among  enlisted  men  of , 

and  having  been  duly  ordered  by  {insert  name  and  rank 
of  officer  or  noncommissioned  officer)  into  confinement 
{or  arrest)  did  refuse  to  obey  and  did  disobey  said  order. 

"This  at ,  on  the of ,  19—." 

Article  32. 

Charge  :  "Absence  without  leave,  in  violation  of  the 
32d  Article  of  War." 

Specification  :  ' '  In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did  absent  himself  from  his  com- 
pany, without  leave  from  his  commanding  officer,  from 

,  on  the  of ,  19 — ,  until  ,  on  the  

of ,  19—. 

"This  at ." 

Article  33. 

(a)  Charge:  "Absence  from  parade,  in  violation  of 
the33d  Article  of  War." 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  not  being  prevented  by  sickness  or 

other  necessity,  did  fail  to  repair,  at  the  fixed  time,  to 
the  place  of  parade  appointed  by  his  commanding  officer. 

"This  at ,  on  the of ,  19 — ." 

or, 

(&)  "Absence  from  11  p.  m.  inspection,  in  violation  of 
the  33d  Article  of  War." 

Specification :  "In  that  private  A B ,  Co. , 

U.  S.  Infantry,  not  being  prevented  by  sickness  or 


FORMS   FOR   CHARGES.  137 

other  necessity,  did  fail  to  repair,  at  the  fixed  time,  to 
the  place  appointed  by  his  commanding  officer  for  11 
o'clock  p.  m.  inspection  of  his  company. 
"This  at ,  on  the of ,  19—." 

Article  38. 

(a)  Charge:  "Drunkenness  on  duty,  in  violation  of 
the  38th  Article  of  War." 

Specification:  "In  that  Private  A B ,  Troop 

, U.  S.  Cavalry,  while  on  duty  on  stable  guard, 

was  found  drunk. 

"This  at ,  on  the of ,  19—." 

or, 

{h)  "In  that  Private  A B ,  Co. , U.  S. 

Infantry,  while  on  duty  at  drill,  was  found  drunk. 

"  This  at ,  on  the of ,  19—." 

Article  39. 

.  (a)  Charge:  "Sleeping  on  post,  in  violation  of  the 
39th  Article  of  War." 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  being  on  guard  and  posted  as  a  sen- 
tinel, was  found  sleeping  on  his  post. 

"This  at ,  on  the of ,  19—." 

or, 

(b)  "  Leaving  post,  in  violation  of  the  39th  Article  of 
War." 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  being  on  guard  and  posted  as  a  sen- 
tinel, did  leave  his  post  before  he  was  regularly  relieved. 

"  This  at ,  on  the of ,  19—." 

Article  40. 

Charge:  "Quitting  guard,  in  violation  of  the  40th 
Article  of  War." 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  being  on  guard,  did.  without  urgent 

necessity,  quit  his  guard  without  leave  from  his  superior 
officer. 

"  This  at ,  on  the of ,  19 — ." 


138  FORMS    FOR    CHARGES. 

Article  47. 

(a)  Charge :  "Desertion,  in  violation  of  the  47th  Arti- 
cle of  War." 

Specification:  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  a  soldier  in  the  service  of  the  United 

States/  did  desert  the  same  at on  or  about  the 

of ,  19 — ,  and  did  remain  absent  in  desertion  until 

he  was  apprehended  {or  until  he  surrendered  himself), 
at ,  on  or  about  the of ,  19 — ." 

{If  a  soldier  deserts  and  enlists  in  another  company,  he 
shoidd  be  charged  with  desertion  under  the  4'^th  Article, 
and  also  ivith  ''fraudulent  enlistment,  to  the  prejudice 
of  good  order  and  jnilitary  discipline,'^  under  the  6 M.'^ 
An  additional  specification  to  the  charge  of  desertion 
should  set  forth  the  offense  as  follows :) 

Specification  2:  "  In  that  Private  A B ,  Troop 

,  U.  S.  Cavalry,  alias  Private  C D , 

Company   ,  U.  S.  Infantry,  a  soldier  in  the 

service  of  the  United  States,  did  desert  the  same  at 

on  or  about '  the of ,  19 — ,  as  evidenced  by  the 

fact  that  he  did  enlist  at on  or  about  the day 

of ,  19 — ,  under  the  name  C D ,  in  Company 

, U,  S.  Infantry,  without  a  regular  discharge 

from  said  Troop , Cavalry." 

Article  51. 

Charge:  "Advising  (or  persuading)  a  soldier  to  desert, 
in  violation  of  the  51st  Article  of  War." 

Specification:  "In  that  Private  A B ,  

U.  S.  Infantry,  did  advise  {or  persuade)  Private  A 

B , U.  S.  Infantry,  to  desert  the  service  of  the 

United  States  {if  desertion  occurred,  state  the  fact). 

"  This  at ,  on  the of ,  19—." 


1  This  form  is  applicable  either  in  case  a  soldier  has  "  received  pay"  or 
has  been  "duly  enlisted."  In  either  case  the  "  statement  of  service "  will 
enable  the  court  to  determine  as  to  the  statute  of  liinitatidii  and  jjroper  pun- 
ishment.    (See  page  34,  par.  9,  and  page  52,  atih'.) 

2See  50th  A.  W.     Forform  for  "fraudulent  enlistment,"  seepage  142, j)Os/. 

3  Give  date  of  original  absence  without  authority.  See  Cir.  No.  46,  W.  D., 
•luly  13,  1010. 


FORMS   FOR   CHARGES.  139 

Article  58. 

Charge:  "  Murder,  in  violation  of  the  58th  Article  of 
War." 

Specification ;  "  In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did  in  time  of  (war,  insurrection,  or 

rebellion)  willfully,  unlawfully,  feloniously  and  with 

malice  aforethought  murder  and  kill by  {here 

set  forth  the  manner  of  killing). 

"  This  at ,  on  or  about  the of ,  19 — ." 

Article  60. 

(a)  Charge:  "  Causing  to  be  presented  to  the  United 
States  authorities  for  payment  a  false  and  fraudulent 
claim  against  the  United  States,  knowing  such  claim  to 
be  false  and  fraudulent,  in  violation  of  the  60th  Article 
of  War." 

Specification:  "In  that  1st  Lieut.  A B , 

U.  S.  Infantry,  having  duly  assigned  to and 

caused  to  be  presented  for  payment  to ,  Deputy 

Paymaster  General,  U.S.  Army,  by ,  his  official 

pay  account  and  claim  against  the  United  States  for  pay 

in  full  for  the  month  of ,  19—,  amounting  to  the  sum 

of ($ ) ,  and  the  same  having  been  duly  satisfied 

and  paid  on  such  presentation,  on  or  about ,  19 — , 

did  subsequently  cause  to  be  presented  for  payment  by 
his  assignee, ,  to  the  said ,  Deputy  Pay- 
master General,  another,  and  a  false  and  fraudulent, 
official  pay  account  and  claim  against  the  United  States 
for  pay  for  the  same  month  and  in  the  same  amount,  he, 
the  said  Lieut.  A B ,  well  knowing  that  this  sub- 
sequent account  and  claim  was  false  and  fraudulent. 

"  This  at ,  on  or  about  the of ,  19—." 

(b)  Charge:  '•  Larceny,  in  violation  of  the  60th  Article 
of  War." 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did  feloniously  take,  steal,  and  carry 

away ,  of  the  value  of  $ ,  the  property  of  the 


140  FORMS    FOR   CHARGES. 

United  States,  furnished  and  intended  for  the  military 
service  thereof. 

"  This  at ,  on  the of,  19 — ." 

Article  61. 

Charge:  "  Conduct  unbecoming  an  officer  and  a  gen- 
tleman, in  violation  of  the  61st  Article  of  War." 

Specification  1 :  "In  that  1st  Lieut.  A B , 

U.  S.  Infantry,  having,  for  value  received,  assigned  to 

,  his  official  pay  account  and  claim  for  pay  in 

full  against  the  United  States  for  the  month  of , 

19 — ,  which  said  account  was  made  and  executed  by 
him  in  due  manner  and  form.,  did,  nevertheless,  for  a 

valuable  consideration,  assign  to ,  another  and 

a  second  pay  account  and  claim  of  the  same  nature 
and  form,  and  for  the  same  amount  and  period,  he,  the 

said  Lieut.  A B ,  well  knowing  at  the  time  he 

made  such  assignment  that  the  second  account  and  claim 
was  false  and  fraudulent. 

'•  This  at ,  on  or  about  the of ,  19 — ." 

Specification  2:  "In  that  1st  Lieut.  A B , 

U.  S.  Infantry,  having  made  and  executed  in  due  form 
his  certain  pay  account  as  an  officer  in  the  army  for  the 

month  of ,  19 — ,  and  having  duly  assigned  the  said 

account  to ,  thereby  parting  with  all  individual 

title  and  interest  therein,  and  without  having  redeemed 
the  same,  and  while  it  remained  in  full  force  and  effect, 
did  falsely  certify  with  his  official  signature  to  the  cor- 
rectness of  another  official  pay  account  for  pay  for  the 
said  month  of ,  19—,  duly  made,  executed,  and  as- 
signed to ,  which  said  certificate  was  in  words 

as  follows:  'I  certify  that  the  foregoing  statement  is 
correct.' 

"  This  at ,  on  or  about  the of ,  19 — ." 

Article  62. 

(a)  Charge:    "Neglect  of  duty,  to  the  prejudice  of 
good  order  and  military  discipline. ' ' 


FORMS   FOR   CHARGES.  141 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  being  on  duty  as ,  and  it  being 

his  dnty  as  such  to ,  did  fail  and  neglect  to  perform 

said  duty. 

"  This  at ,  on  the of ,  19—." 

(5)  Charge:  "  Drunkenness" and  disorderly  conduct, 
to  the  prejudice  of  good  order  and  military  discipline." 

Specification :  '*  In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  was  drunk  and  disorderly  in . 

"  This  at ,  on  the of ,  19—." 

(e)  Charge:  "Suffering  a  prisoner  to  escape,  to  the 
prejudice  of  good  order  and  military  discipline." 

Specification  :  ' '  In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  while  on  duty  as  a  sentinel,  did, 

through  neglect,  suffer  Private  C D ,  Co. , 

— — U.  S.  Infantry,  a  prisoner  under  his  charge,  to  escape. 

"This  at ,  on  the of ,19—." 

or, 

Specification :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  while  on  duty  as  a  sentinel,  did  will- 
fully suffer  Private  C D ,  Co.  ,  U.  S. 

Infantry,  a  prisoner  under  his  charge,  to  escape. 

"  This  at ,  on  the of ,  19—." 

{d)  Charge:  "  Conduct  to  the  prejudice  of  good  order 
and  military  discipline." 

Specification  :  "In  that  Private  A B- ,  Co. , 

U.  S.  Infantry,  having  received  a  lawful  order 

from  1st  Sergt.  C D .  Co. , U.  S.  Infan- 
try, the  said  sergeant  being  in  the  execution  of  his  office, 
to  {insert  order),  did  willfully  disobey  the  same. 

<' This  at ,  on  the of ,  19—." 

{If  any  person  not  a  soldier  ^  fraudidently  enlist  in  the 
United  States  service,  the  cliarge  and  specification  should 
read:'^) 

iFor  case  of  fraudulent  enlistment  by  a  soldier,  see  page  142,  form  (</), 
post ;  and  for  definition  of  "  fraudulent  enlistment,"  see  page  14,  note  4, 
ante. 

2See  sec.  3  of  the  act  of  July  27,  1.S92;  page  116,  note  2,  ante. 


142  FORMS   FOR   CHARGES. 

(e)  Charge:  "  Fraudulent  enlistment,  in  violation  of 
the  62d  Article  of  War." 

Specification:  "  In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did,  at^ ,  on  the of ,19 — , 

being  then  a  minor,  fraudulently  enlist  as  a  soldier  in  the 
service  of  the  United  States  by  falsely  representing  him- 
self to  be  over  21  years  of  age,  to  wit, years  and 

months  of  age;  and  that  he  has  at ,  since  said  enlist- 
ment, received  pay  and  allowances  thereunder." 
or, 

(/)  Specification:  "In  that  Private  A B ,  Co. 

, U.  S.  Infantry,  did,  at ,  on  the of , 

19 — ,  fraudulently  enlist  as  a  soldier  in  the  service  of  the 
United  States,  by  falsely  representing  that  he  had  never 
been  discharged  from  the  United  States  service  by  sen- 
tence of  a  military  court  and  by  deliberately  and  will- 
fully concealing  from  the  recruiting  officer, ,  the 

fact  of  his  dishonorable  discharge  from ,  on  , 

pursuant  to  sentence  of  court-martial;  and  that  he  has 
at ,  since  said  enlistment,  received  pay  and  allow- 
ances thereunder." 

{or)  if  a  soldier  enlists  without  a  discharge  from  a  prior 
enlistment.  ^ 

(g)  Specification:  "In  that  Private  A B ,  Troop 

,  U.  S.  Cavalry,  alias  Private  C D , 

Co. , U.  S.  Infantry,  a  soldier  in  the  service  of 

the  United  States,  did,  without  a  discharge  from  said 

regiment  of  cavalry,   fraudulently  enlist  in  Co.  , 

U.S.  Infantry,  at ,  on  the day  of ,19 — , 

under  the  name  of  C D ." 

(h)  Charge :  ' '  Manslaughter,  to  the  prejudice  of  good 
order  and  military  discipline,  in  violation  of  the  62d 
Article  of  War." 

Specification:  "  In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did  unlawfully,  willfully  and  feloni- 

1  lu  such  cases  it  is  not  necessary  to  allege  receipt  of  pay  or  allowance,  as 
the  soldier  being  already  in  the  service,  his  enlisting  again  without  a  dis- 
charge is  punishable  as  fraudulent  enlistment  without  regard  to  the  act  of 
July  27,  1892.     See  Digest  Opiu.  J.  A.  G.,  §  1418. 


FORMS    FOR   CHARGES.  143 

ously  kill  Private  C D ,  Co. , U.  S.  In- 
fantry, by  {here  insert  manner  of  killing). 

'•  This  at ,  on  the of ,  19—." 

(i)  Charge:  "Assault  (or,  assault  and  battery)^  with 
intent  to  kill,  to  the  prejudice  of  good  order  and  mili- 
tary discipline.'' 

Specification:  "  In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did  feloniously  assault  Sergeant 

,  Co. , U.  S.  Infantry,  by  shooting  at 

him  with  a  pistol  {or  by  stabbing  him  with  a  knife, 
etc.,  etc.)  with  intent  to  kill. 

"  This  at ,  on  the of ,  19—." 

{J)  Charge:  "  Burglary,  to  the  prejudice  of  good  order  j 
and  military  discipline." 

Specification:  "  In  that  Private  A B ,  Co.  — 

U.  S.  Infantry,  did,  in  the  night  time,  break  into 

and  enter  the  quarters  of  1st  Lieut.  C D , 

U.  S.  Cavalry,  with  intent  to  commit  a  felony,  to  wit: 
{here  describe  the  felony) . 

"  This  at  ,  about  o'clock  — .  m.  on  the  

of ,  19—." 

{k)  Charge:  "  Larceny,  to  the  prejudice  of  good  order 
and  military  discipline." 

Specification:  ' '  In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did  feloniously  take,  steal,  and  carry 

away ,  of  the  value  of dollars  ($ ) ,  the  prop- 
erty of  Corporal ,  Co. , U.  S.  Infantry. 

"  This  at ,  on  the of ,  19 — ." 

{I)  Charge:  "  Embezzlement,  as  defined  in  section 
5488,  Revised  Statutes  of  the  United  States,  in  violation 
of  the  62d  Article  of  War." 

Specification:  "In  that ,  U.  S.  Army,  being 

the  officer  in  charge  for  the  United  States  of ,  and, 

as  such  officer  in  charge  of  said ,  being  a  disbursing 

officer  of  the  United  States,  and  having  intrusted  to  him 
large  amounts  of  public  money  of  the  United  States, 
did  willfully  and  knowingly  apply  for  a  purpose  not 
authorized  by  law  a  large  sum  of  the  said  moneys  so 

llf  there  be  any  unlawful  touching  of  the  person  of  another  by  the 
aggressor  himself  or  any  other  substance  put  in  motion  by  him,  battery 
should  be  charged. 


/' 

>. 

ll'^ 

K 

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3  0 

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i\A 

^ 

14:4  FORMS    FOR    CHARGES. 

intrusted  to  him,  by  willfully  and  knowingly  causing 
the  amount  hereinafter  named  to  be  paid  out  of  the 
said  moneys  which  were  subject  to  his  order  and  control 

as  such  officer  in  charge  of  said ,  the  account  on 

which  the  same  was  paid  being  false,  the  amount  paid 
not  being  due  or  owing  from  the  United  States  to  the 

party  paid,  or  to  anyone,  and  he,  the  said  ■ — ,  well 

knowing  this  to  be  the  case;  the  said  account,  the 
amount  paid,  and  the  payment  being  that  designated  by 
the  following  voucher  (and  the  entries  therein  and  the 

indorsements  thereon) ,  submitted  by  the  said , 

with  his  accounts  and  marked  'Appropriation  for .' 

Voucher  No. ,  $ -,  dated ,  the  said  payment 

having  been  caused  to  be  made  on  or  about ,  by 

the  said drawing  and  delivering  a  check,  as 

such  officer  in  charge  of ,  by  which  the  payment 

was  ordered  and  directed  to  be  made  out  of  moneys  of 
the  United  States  under  his  control  as  such  officer. 

"  This  at ,  on  or  about  the of ,  19—." 

(m)  Charge:  "Perjury,^  to  the  prejudice  of  good 
order  and  military  discipline. ' ' 

Specification:  "In that  Private  A B ,Co.  , 

U.  S,  Infantry,  having  been  duly  sworn,  at  his  own 

request,  as  a  witness  in  his  own  defense  before  a 

court-martial,  convened  at ,  by order  No. , 

dated  ■ ■,  19 — ,  for  his  trial,  did  willfully,  falsely,  and 

corruptly  testify  as  follows: 

"Question  by  judge-advocate: ? 

"Answer: . 

"  Which  testimony  was  false  in  i\i2d, {specify  in  what  re- 
spects) .  and  which  testimony  was  known  by  him,  the  said 

A B ,  to  be  false,  was  material  to  the  issue  then 

being  tried ,  and  was  given  with  intent  to  deceive  the  court. 

"This  at ,  on  the ■  day  of ,  19—." 

1  Wharton  says  (Criminal  Law,  §  1259)":  "  Perjury  before  courts-martial  is 
by  statute  made  indictable  in  most  jurisdictions;  but  even  when  a  statute 
does  not  apply,  the  weight  of  authority  is  that  it  is  perjury  at  common  law." 
It  is  a  statutory  ci-ime,  under  sec.  6392,  R,  S.  So  that  false  swearing  before 
a  court-martial,  if  it  possesses  the  other  elements  of  perjury,  is  perjury,  and 
can  be  tried  as  such  by  court-martial  under  the  62d  A.  W.  The  rules  of 
evidence  in  regard  to  perjury  will  then  apply.  When  any  of  the  elements 
of  perjury  are  lacking  the  offense  will  properly  be  charged  as  "  false  swear- 
ing; "  e.  y.,  when  the  matter  is  not  material  to  the  issue. 


surgeon's  report.  145 

STATEMENT  OF  SERVICE. i 

(Surname.)  (Christian  name.) 


(Rank  and  organization.) 

{Statement  of  service  required  by  paragraph  962,  Army 
Regulations.) 

FORMER  SERVICE. 


Date  of  enlistment         Date  of  discharge.       Character  given  on  discharge, 


Date  of  present  enlistment -,  19  — . 

Date  of  confinement  under  present  charges ,  19 


(Station.)  Commanding . 

(Date.) 


SURGEON'S  REPORT  OX  ALT^EGED  DESERTER. 

Fort , 

,  19—. 

Sir:  In  compliance  with  par.  125,  A.  R. ,  I  have  the 

honor  to  report  that  I  have  critically  examined , 

an  alleged  deserter,  and  find  him  fit  for  service  {or,  unfit 
for  service  on  account  of ). 

To  the  Surgeon. 

Post  Adjutant. 

1  See  page  64,  par.  7,  ante.     When  possible  the  name  of  the  organization 
or  organizations  in  which  the  soldier  formerly  served  should  be  given. 


146      RECORD    OF   GENERAL    COURT-MARTIAL. 
RECORD  OF  A  GENERAL  COURT-MARTIAI..1 

Sec.  I  —Form  for  Record.' 
Case  1. 

INDEX.  ^ 

Page. 

Convening  order . 1 

Organization  of  court,  etc 2 

Accused  (Private , Co.,  C.  A.) introduced 3 

Counsel  introduced 3 

Reporter  sworn 3 

Convening  order  read 3 

Challenge,  right  accorded 3 

Court  and  judge-advocate  sworn 4 

Interpreter  sworn 4 

Continuance  (if  desii-ed) 4 

Adjournment 7,11 

Recess 9 

Court  reconvened 7 

Arraignment 4 

Pleas 5 

Evidence: 

For  prosecution — 

Sergeant  John  Jones . 5 

Prosecution  rests 7 

For  defense — 

Corporal  John  Smith 8 

Accused  testifies 8 

Statement  by  accused 9 

Address  by  counsel 9 

Reply  by  judge-advocate 9 

Findings 9 

Previous  convictions  submitted 10 

Sentence  {or  acquittal) 10 

Revision  of  record 12 

iSee  "  Record  of  proceedings,"  page  63,  ante.  The  record  will  be  clear 
and  legible,  and,  if  practicable,  without  erasure  or  interlineation.  Any 
erasure  or  interlineation  made  must  be  authenticated  by  the  initials  of  the 
president  or  of  the  judge-advocate.  In  case  the  record  is  typewritten  a 
copyable  ribbon  will  be  used. 

2  The  pages  of  the  record  will  be  numbered  at  the  bottom,  and  margins  of 
1  inch  will  be  left  at  the  top,  bottom,  and  left  side  of  each  page. 

3  The  index  will  refer  to  everything  essential  to  the  organization  and 
jurisdiction  of  the  court  and  the  regularity  of  its  proceedings.  It  will  also 
refer  to  the  pages  where  each  witness  was  sworn  and  recalled,  and  the  pages 
where  each  document  was  introduced  and  appended. 


RECORD    OF   GENERAL    COURT-MARTIAL.      147 

Proceedings  ^  of  a  general  court-martial  which  con- 
vened at , ,  pursuant  to  the  following  order: 

{Here  insert  a  literal  copy  of  the  order  appointing  the 
court,  and  folloiving  it,  copies  of  any  orders  modifying 
the  detail. )  ^ 

Headquarters  Department  of , 

Special  Orders, 

No.—. 

A  general  court-martial  is  appointed  to  meet  at , 

,  at .  m.,  on ,  19 — ,  or  as  soon  there- 
after as  practicable,  for  the  trial  of  such  persons  as 
may  be  properly  brought  before  it. 

DETAIL    FOR   THE    COUKT. 

Major ,  5th  Cavalry." 

Captain ,  Coast  Artillery  Corps. 

Captain ,  Medical  Corps. 

1st  Lieutenant ,  lOtli  Infantry. 

1st  Lieutenant ,  5th  Cavalry. 

2d  Lieutenant ,  Coast  Artillery  Corps. 

2d  Lieutenant ,  10th  Infantry. 

1st  Lieutenant ,  5th  Cavalry,  judge-advocate. 

{If  less  than  thirteen  members  are  detailed,  the  order 
will  state:) 

A  greater  number  of  officers  can  not  be  assembled 
without  manifest  injury  to  the  service. 
(Pagel.) 

1"  Every  party  tried  by  a  general  court-martial  shall,  upon  demand 
thereof,  made  by  himself  or  by  any  person  in  his  behalf,  be  entitled  to  a 
copy  of  the  proceedings  and  sentence  of  such  court."  (114th  A.  AY.)  Ap- 
plications for  copies  under  this  article,  will,  when  received  bj*  post  or  other 
commanders,  be  forwarded  direct  to  the  Judge-Advocate-General.  (Par. 
927,  A.  E.) 

2  Words  inclosed  in  parentheses,  (  ),  or  brackets,  [  ],  are  simply  explana- 
tory, and  will  not  be  copied  in  the  record. 


148     RECORD    OF    GENERAL    COURT-MARTIAL. 

{hi  case  ti^avel  is  necessary,  the  following  sentence  will 
he  added:) 

The  journeys  required  in  complying  with  this  order 
are  necessary  in  the  military  service. 

By  command  of  Brigadier  General : 

(Signed)  , 

Adjutant-General, 

Fort , 

,  19-. 

The  court  met  pursuant  to  the  foregoing  order  at 
o'clock  — .  m. 

PKESENT.l 

Major ,  5th  Cavalry. 

Captain ,  Medical  Corps. 

1st  Lieutenant ,  10th  Infantry. 

1st  Lieutenant ,  5th  Cavalry, 

2d  Lieutenant ,  Coast  Artillery  Corps. 

1st  Lieutenant ,  5th  Cavalry,  judge-advocate. 


Captain ,  Coast  Artillery  Corps. 

2d  Lieutenant ,  10th  Infantry. 

{If  the  cause  of  absence  is  known,  it  will  he  recorded: 
if  unknown,  it  will  he  so  stated.y 

(Page  2.) 

1  In  the  record  of  the  proceedings  of  a  court-martial,  at  its  organization 
for  the  trial  of  a  case,  the  officers  detailed  as  members  and  judge-advocate 
will  be  noted  by  name  as  present  or  absent.  In  the  record  of  the  proceed- 
ings of  subsequent  sessions  in  the  same  case,  the  following  form  of  words 
will  be  used,  subject  to  such  modifications  as  the  facts  may  require:  "  Pres- 
ent, all  the  members  of  the  court  and  the  judge-advocate."  When  the  ab- 
sence of  an  officer  who  has  not  qualified,  or  who  has  been  relieved  or  excused 
as  a  member,  has  been  accounted  for,  no  further  note  will  be  made  of  it. 

2  It  is  the  duty  of  a  judge-advocate  to  ascertain,  if  possible,  the  cause  of 
absence.  If  a  member  is  absent  by  order,  the  number  and  date  of  order  will 
be  given  if  the  order  emanate  from  the  convening  or  higher  authority;  but 
if  absent  by  telegraphic  authority,  a  post  order,  etc.,  a  copy  of  the  authority 
should  be  appended  to  the  record;  if  absent  sick,  a  surgeon's  certificate  of 
sickness  and  inability  to  attend  will  be  furnished  by  the  absent  member, 
and  appended  to  the  record. 


RECORD    OF   GENERAL   COURT-MARTIAL.      149 

The  court  then  proceeded  to  the  trial  of  Private • 

, th  Company,  Coast  Artillery  Corps,  who,  hav- 
ing been  brought  before  the  court,  stated  that  he  did  not 
desire  counsel;  (or)  introduced as  counsel. 

[Reporter]  ^ 

I was  duly  sworn  as  reporter.- 

The  order  convening  the  court  (and  the  order  or  or- 
ders modifying  the  detail,  if  any)  was  (or  were)  read  to 
the  accused,  and  he  was  asked  if  he  objected  to  being 
tried  by  any  member  present  named  therein;  to  which 
he  replied  in  the  negative. 

[Challenges.] 

(or)  that  he  objected  to on  the  following 

grounds: 

{Insert  objections. ) 

The  challenged  member  stated: 

{Insert  the  statement  of  the  challenged  member,  icho 
should  always  be  requested  to  respond  to  the  challenge 
and  inform  the  court  upon  its  merits.  Should  the 
accused,  after  the  statement,  desire  to  put  the  chal- 
lenged member  upon  his  voir  dire,  the  record  should 
continue:) 

The  accused  having  requested  that  the  challenged 

member  be  sworn  upon  his  voir  dire,^ was 

duly  sworn  by  the  judge-advocate,  and  testified  as 
follows:^ 

(Page  3.) 

iTo  facilitate  use  of  form,  subheads  "reporter,"  "  challenges,"  etc.,  are 
inserted  and  followed  by  marginal  lines.  To  use  form  in  case  no  reporter  is 
employed,  follow  form  to  "  reporter,"  and  then  omit  as  far  as  marginal  line 
under  "  reporter  "  extends.  In  like  manner  omit  when  necessary  for  other 
subheads. 

2 The  reporter  must  be  sworn  in  each  case.  For  form  of  oath,  see  page 
31,  par.  4,  ante. 

3  For  form  of  oath,  see  page  31 ,  par.  6,  ante. 

*  The  form  of  examination  should  be  similar  to  that  given  for  witness  for 
the  defense,  page  154,  post.  The  accused  should  first  ask  his  questions,  and 
then  the  judge-advocate  and  court  such  as  they  may  deem  pertinent. 


150     RECORD   OF   GENERAL   COURT-MARTIAL. 

The  challenged  member,  the  accused,  (his  counsel,) 
(the  reporter,)  and  judge-advocate  then  withdrew,^ 
and  the  court  was  closed,  and  on  being  opened  the 
president  announced  in  their  presence  that  the  objec- 
tion of  the  accused  was  not  sustained^  (or)  that  the 
objection  was  sustained. then  withdrew. 

The  accused  was  asked  if  he  objected  to  any  other 
member  present ;  ^  to  which  he  replied  in  the  nega- 
tive, (or)  that  he  objected  to on  the  follow- 
ing grounds: 

(Insert  objection  in  full  and  7^ecord  as  before.) 

The  members  of  the  court  and  the  judge-advocate 
were  then  duly  sworn."* 

[Interpreter.] 

I       (If  an  interpreter  is  required,  lie  should  now  be 
sworn.)^ 

[Delay.] 

(If  delay  is  desired  for  cause  known,  application 
should  now  be  made  and  tJie  proceedings  of  the  court 
recorded.*^  If  no  delay  is  requested,  the  record  should 
continue:) 

The  accused  was  then  arraigned  upon  the  following 
charges  and  specifications:^ 

Charge  I: . 

Specification  1st: . 

Specification  2d: . 

(Page  4.) 

1  See  page  25,  par.  7,  ante. 

2  In  case  of  a  tie  vote  see  page  22,  note  3,  ante. 

3  Only  one  member  at  a  time  can  be  challenged,  and  a  record  of  tlie  pro- 
ceedings in  each  case  must  be  made. 

*  Whenever  the  same  court-martial  tries  more  than  one  prisoner  on  sepa- 
rate and  distinct  charges,  the  court  will  be  sworn  at  the  commencement  of 
each  trial  and  separate  proceedings  in  each  case  prepared.  For  forms  of 
oaths  see  page  30,  ante. 

5  For  form  of  oaths  see  page  31,  ante. 

6  See  page  32,  ante. 

1  The  signature  and  rank  of  the  officer  preferring  tlie  cliarge  is  not  a  part 
of  the  charge  and  should  not  be  copied  into  the  record. 


RECORD    OF    GENERAL   COURT-MARTIAL.      151 

Charge  II: . 

[Plea  to  the  jurisdiction,  in  abatement  or  in  bar.] 
To  which  the  accused  submitted  the  following 
special  plea  to  the  jurisdiction  {or  in  abatement,  or 
in  bar  of  trial) :  ^ 
(or) 

To  which  the  accused  pleaded^  as  follows: 
To  the  1st  specification,  tst  charge,  "Guilty;"  (or) 
"Not  guilty."* 

To  the  2d  specification,  1st  charge,  "Guilty;"  (or) 
"Not  guilty." 
To  the  1st  charge,  "  Guilty; "  (or)  "  Not  guilty." 
To  the  1st  specification,  2d  charge,  etc. 
Sergeant  John  Jones,  Co. , Infantry,  a  wit- 
ness for  the  prosecution,  was  duly  sworn,  and  testified 
as  follows: 

Direct  examination: 
Questions  by  the  judge-advocate:^ 
Q.  Do  you  know  the  accused?    If  so,  state  who  he  is. 

A.  I  do;  Private ,  th  Company,  Coast 

Artillery. 

{TTie  succeeding  questions  of  the  judge-advocate  and 
their  answers  should  follow  in  order. Y 
Cross-examination  : 
Questions  by  the  accused: 
g. ? 

{If  the  accused  declines  to  cross-examine  the  witness 
the  record  shoidd  state:) 
The  accused  declined  to  cross-examine  the  witness. 
(Page  5.) 

1  If  a  special  plea  is  made,  the  plea,  the  reply  of  the  judge-advocate,  and 
the  action  of  the  court  thereon  will  be  fully  stated;  seepage  33,  par.  7,  ante, 
and  page  155,  note  2,  post. 

2  See  page  33,  par.  3,  ante,  as  to  admission  of  intention  to  desert. 

3  When  considered  desirable  the  first  question  may  be  as  to  the  identity  of 
the  witness. 

•*The  record  should  set  forth  fully  all  the  teMlmony  introduced  upon  the 
trial,  the  oral  portion  as  near  as  practicable  in  the  precise  words  of  the 
witness.  If  the  court  should  decide  to  expunge  any  part,  it  will  not  be 
literally  expunged  or  omitted  from  the  record  but  will  not  be  thereafter 
considered  as  part  of  the  evidence. 


152      RECORD    OF   GENERAL    COURT-MARTIAL. 

Redirect  examination: 
Questions  by  the  judge-advocate: 


Recross-examination  : 

Examination  by  the  court: 

A. 

[Objection  to  question.]  ^ 

Question  by  a  member: ? 

To  this  question  the  accused  (or  party  objecting) 
objected  as  follows: 
{Insert  objection.) 
To  which  the  member  replied: 
{Insert  reply.) 

The  accused  (his  counsel,)    (the  reporter,)    and 
judge-advocate  withdrew  and  the  court  was  closed, 
and  on  being  opened  the  president  announced  in 
their  presence  that  the  objection  was  sustained. 
{or)  was  not  sustained. 
{In  the  latter  case  the  record  should  continue:) 
The  question  was  then  repeated  by  the  judge- 
advocate  as  a  question  of  the  court. 

A. . 

{If  the  court  considers  it  necessary  to  hear  the  testi- 
mony of  the  witness  read  or  the  witness  desires  to  have 
certain   testimony  read  for  correction   the  record  will 
shotv  the  fact  and  the  corrections,  if  any.)  '^ 
(Page  6.) 

1  If  a  question  put  by  a  member,  is  objected  to  by  another  member,  the 
judge-advocate,  or  the  accused,  and  the  objection  is  sustained,  it  will  be 
recorded  as  a  question  by  a  member,  and  tiot  answered.  If  the  objection  is  not 
sustained  it  will  be  recorded  as  a  question  by  the  court,  repeated  by  the  judge- 
advocate,  and  must  be  answered.  If  a  question  is  objected  to  by  anyone,  at 
any  time  during  the  trial,  the  above  method  of  recording  the  action  of  the 
court  will  be  followed. 

2  Should  a  witness  be  recalled  and  again  placed  on  the  stand,  he  will  be 
reminded  that  he  has  been  sworn  in  the  case  and  is  still  under  oatlu-. 


RECORD    OF   GENERAL    COURT-MARTIAL.      153 

(At  the  close  of  the  prosecution  the  record  should  con- 
tinue:) 

The  judge-advocate  announced  that  the  prosecution 
here  rested. 

{If  the  court  adjourns  to  meet  another  day  the  record 
shoidd  continue:) 

The  court  then,  at  o'clock  —  m.,  adjourned  to 

meet  at o'clock  —  m.,  on . 

» 
1st  Lieut.,  5th  Cavalry, 

Judge-Advocate.^ 

Fort , 

,  19— 

The  court  met  pursuant  to  adjournment,   at  

o'clock  —  m. 

PRESENT. ■- 

All  the  members  of  the  court  and  the  judge-advocate.^ 

The  accused,  his  counsel,  and  the  reporter  were  also 
present. 

{If  the  proceedings  of  the  previous  day  are  required 
by  the  court  to  be  read,  the  fact  will  be  recorded  in  the 
folio  icing  form:) 

The  proceedings  of were  read^  and  approved. 

{or)  corrected  as  follows: 

{In  latter  case,  enumerate  corrections,  giving  page 
and  line  on  which  they  occur. ) 

(Page?.) 

1  The  judge-advocate  should  sign  each  day's  proceedings.  (Par.  988, 
A.  R.) 

'  See  page  148,  note  1,  ante. 

3  If  any  member  is  absent,  if  not  already  accounted  for,  ^d  except 

{giving  cause  of  absence,  if  kyioivn). 

4  The  reading  of  previous  proceedings  will  be  dispensed  with,  unless  for 
special  reason  considered  necessary  by  the  court.     See  page  63,  par.  2,  ante. 


154      RECORD    OF   GENERAL   COURT-MARTIAL. 

Corporal  John  Smith,  Co. , Infantry,  a  wit- 
ness for  the  defense,  was  duly  sworn  and  testified  as 
follows: 

Direct  examination: 
Question  by  the  judge-advocate:  ^  Do  you  know  the 
accused?    If  so,  state  who  he  is, 

A. . 

Questions  by  the  accused: 
Q. ? 

( The  examination  should  be  conducted  as  in  case  of  a 
witness  for  the  prosecution,  the  judge-advocate  cross- 
examiningy  and  the  accused,  if  he  so  desires,  reexamin- 
ing the  witness.) 

(Should  the  accused  wish  to  testify  in  his  own  behalf, 
the  record  will  continue-.y 

The  accused,  at  his  own  request,  was  duly  sworn  as  a 
witness,  and  testified  as  follows: 

Questions  by  the.  accused: 

Q- ? 

{The  examination  of  the  accused  should  be  conducted 
in  the  same  manner  as  that  of  any  other  witness.) 

{If  the  accused  has  no  other  witness  to  call,  the  record 
should  continue:) 

The  accused  had  no  further  testimony  to  offer  and  no 
statement  to  make. 

{or)  having  no  further  testimony  to  offer,  made  the 
following  verbal  statement  in  his  defense. 
(Pages.) 

1  Though  this  is  a  witness  for  the  defense,  the  judge-advocate  will  ask  the 
preliminary  question  for  the  purpose  of  determining  his  identification  of 
the  accused.  When  considered  desirable,  the  first  (juestion  may  be  as  to  the 
identity  of  the  witness. 

2 Should  the  accused  not  wish  to  testify  in  his  own  behalf  the  fact  may 
not  be  animadverted  upon. 


RECORD   OF   GENERAL   COURT-MAfeTlAL.      155 

(o7^)  having  no  further  testimony  to  offer,  submitted  a 
written  statement  in  his  defense,  which  was  read  to  the 
court,  and  is  hereto  appended  and  marked  A.^ 

(or)  requested  until o'clock  — .  m.  to  prepare  his 

defense. 

(If  the  court  takes  a  recess  during  the  time  asked  for, 
the  record  will  continue:) 

The  court  then  took  a  recess  until o'clock  — .  m.; 

at  which  hour  the  members  of  the  court,  the  judge- 
advocate,  the  accused,  his  counsel,  and  the  reporter 
resumed  their  seats. 

{Or,  if  the  court  has  other  business  before  it,  the  record 
may  continue:) 

The  court  then  proceeded  to  other  business,  and  at 

o'clock  — .  m.  resumed  the  trial  of  this  case;  at  which 
hour,  etc. 

The  accused  submitted  his  defense,  which  was  read  to 
the  court,  and  is  hereto  appended  and  marked  B.- 
The  judge-advocate  submitted  the  case  without  remark. 
(or)  replied  as  follows:  ^ 

(Insert  reply. ) 
(or)  submitted  and  read  to  the  court  a  written  reply, 
which  is  hereto  appended  and  marked  C. 

The  accused  (his  counsel,)  (the  reporter,)  and  judge- 
advocate  then  withdrew  and  the  court  was  closed,  and 

finds  the  accused.  Private , th  Company, 

Coast  Artillery: 

Of  the  1st  specification,  1st  charge:  "Guilty;"  (or) 
"Not  guilty."  (Page  9.) 

1  All  documents  and  papers  made  part  of  the  proceedings,  or  copies  of 
them,  will  be  appended  to  the  record,  in  the  order  of  their  introduction, 
after  the  space  left  for  the  remarks  of  the  reviewing  authority,  and  marked 
in  such  a  manner  as  to  afford  easy  reference.  It  is  not  necessary  to  encum- 
ber a  record  by  spreading  upon  it  documents  or  other  writings,  or  matter 
excluded  by  the  court.  The  record  should  simply  specify  the  character  of 
the  writings  and  the  grounds  upon  which  they  were  ruled  out. 

2  The  statement  of  the  accused,  or  argument  in  his  defense,  and  all  pleas 
to  the  jurisdiction  in  bar  of  trial  or  in  abatement,  when  in  writing,  should 
be  signed  by  the  accused,  referred  to  in  proceedings  as  having  been  sub- 
mitted by  him,  and  appended  to  the  record,  whether  he  is  defended  by  counsel 
or  not. 

3  The  judge-advocate  is  entitled  by  usage  to  sum  up  the  case  and  present 
an  argument  at  the  conclusion  of  the  trial,  even  though  the  accused  declines 
to  make  argument  or  statement. 


156     RECORD    OF   GENERAL   COURT-MARTIAL. 

Of  the  2d  specification,  1st  charge:  ''Guilty,  except 

the  words  ' ,'  and  of  the  excepted  words  'Not 

guilty.'" 

Of  the  first  charge:  "Guilty;"  {or)   "Not  guilty;" 
{or)  "  Not  guilty,  but  guilty  of,  etc., ." 

Of  the  1st  specification,  2d  charge,  etc. 
[Previous    convictions    when    accused    is    found 

GUILTY.] 

{If  the  accused  is  found  guilty  a7id  the  punishment 
is  discretionary,^  the  record  should  continue: 

The  judge-advocate  and  accused  were  then  recalled 
and  the  court  opened,  and  the  judge-advocate  stated 
that  he  had  no  evidence  of  previous  convictions  to 
submit. 

{or)  read  the  evidence  of previous  convictions,^ 

copies  of  which  are  hereto  appended  and  marked 
"D,"  "E,"etc. 

{If  the  accused  has  any  statement  to  make  in  re- 
gard to  his  previous  convictions,  it  will  he  recorded.) 

The  accused  (his  counsel,)  (the  reporter,)  and 
judge-advocate  then  withdrew  and  the   court  was 

closed,  and  sentences  him,  Private , th 

Company,  Coast  Artillery, . 

[No  PREVIOUS  CONVICTIONS,  OR  ACCUSED  ACQUITTED.] 

{If  the  punishment  is  not  discretionary ,  or  the  ac- 
cused is  acquitted,  the  record,  after  the  findings  are 
stated,  should  continue:) 

And  the  court  does  therefore  sentence  him  ;2  etc. 

(or)  does  therefore  acquit  him.  Private , 

th  Company,  Coast  Artillery. 

(Page  10.) 

1  See  page  58,  sec.  2,  ante. 

2 See  "Previous  convictions,"  page  47,  ante.  When  the  proof  produced 
is  the  copy  furnished  to  the  company  or  other  commander,  in  accordance 
with  par.  965,  A.  E.,  it  will  be  returned  to  him  and  a  copy  of  it  attached  to 
the  record,  if  the  trial  be  by  general  court-martial.  (Par.  971,  A.  R.)  The 
copy  should  bo  bound  with  the  record,  as  an  exhibit,  by  means  of  the  mar- 
gin provided  for  the  purpose. 

3  When  the  judge-advocate  records  the  findings  and  sentence  bj^  the  use  of 
a  typewriting  machine  he  will  certify  immediately  after  the  authentication 
of  the  record  as  follows: 

"  I  certify  that  I  recorded  the  findings  and  sentence  of  the  court. 


Jnihjc- Advocate.''^ 


RECORD   OF   GENERAL   COURT-MARTIAL.      157 

The  judge-advocate  was  then  recalled,  and  the  court 

at .  m.  proceeded  to  other  business. 

(or)  adjourned  until .  m.,  the inst. 

{or)  adjourned  to  meet  at  the  call  of  the  president. 
(or,  on  completion  of  the  trial  of  the  last  case  before 
the  court)  adjourned  sine  die. 

Major,  5th  Cavalry, 

President. 

1st  Lieut. ,  5th  Cavalry, 

Judge- Advocate.^ 
{At  least  two  blank  pages  tvill  be  left  after  the  ad- 
journment, and  before  the  exhibits,  for  the  decision  and 
orders  of  the  reviewing  authority.) 

FORM   OF   BRIEF. 

{The  papers  forming  the  complete  record  will  be 
fastened  together  at  the  top,  and  the  record  folded  in 
four  folds,  and  briefed  on  the  first  fold  as  follows:)^ 

Private,  — th  Co.  Coast  Artillery  Corps. 
Trial  by  general  court-martial 

at ; 

Commencing ,  19 — ; 

Ending ,  19—. 

President: 

Major , 

5th  Cavalry. 
Judge- Advocate: 

1st  Lieut. , 

5th  Cavalry. 
(Page  11.) 

1  In  case  of  the  death  or  disability  of  the  judge-advocate  see  par.  988,  A.  R. 

2  When  the  record  is  completed,  the  judge-advocate  will  forward  it  with- 
out delay  to  the  convening  authority  as  an  inclosure  to  the  indorsement  of 
the  judge-advocate  returning  the  original  charges.  (Par.  990,  A.  R.)  See 
also  page  66,  par,  3,  and  page  75,  par.  1,  ante. 


158      RECORD    OF    GENERAL    COURT-MARTIAL. 

Sec.  II.— Form  for  Revision  of  Record.^ 

Fort , , 

,  190—. 

The  court  reconvened  at o'clock  — .  m,,  pursuant 

to  the  following  order: 

(Insert  copy  of  order. ) 
(or)  pursuant  to  the  following  indorsements: 
(Insert  copies  of  all  indorsements.) 

PEESENT.2 


{Insert  names  of  absentees,  arid  state  cause  of  absence^ 
if  known.) 

The  judge-advocate  read  to  the  court  the  foregoing 
order. 

(or)  the  foregoing  indorsement  of  the  convening  au- 
thority.^ 

The  judge-advocate  then  withdrew,  and  the  court 
was  closed  and  revokes  its  former  findings  and  sentence, 
and  finds  the  accused,  etc. 

(or)  revokes  its  former  sentence,  and  sentences  the 
accused,  etc. 

(or)  respectfully  adheres  to  its  former  findings  and 
sentence. 

(or)  amends  the  record  by,  etc.^ 
(Page  12.) 

1  See  "  Revision  of  record,"  piige  &5,  ante.  The  court  is  usually  recou- 
vened  by  indorsement  on  the  original  record,  returning  it  to  the  president 
of  the  court  with  the  directions  of  the  convening  authority. 

2  If  the  findings  and  sentence  are  to  be  considered,  all  the  members  who 
voted  on  them  should,  if  possible,  be  present.  At  least  five  members  of  the 
court,  who  acted  upon  the  trial,  must,  and  the  judge-advocate  should,  be 
present  at  a  revision;  but  it  is  in  general  neither  necessary  nor  desirable 
that  the  accused  should  bo  present. 

3  The  judge-advocate  will  also  read  any  other  indorsements  there  may  be 
connected  with  the  proceedings  in  revision. 

4  See  page  65,  par.  2,  ante. 


RECORD    OF   SUMMARY    COURT.  159 

The  judge-advocate  was  then  recalled  and  the  court 
at .  m.,  etc. 

,  Major,  5th  Cavalry, 

1st  Lieut.,  5th  Cavalry,  President. 

Judge-Advocate. 
( The  record  of  revision  will  be  appended  to  the  original 
proceedings,  folloiving  them  immediately,  before  the  ex- 
hibits, and  the  ivhole  indorsed  by  the  president  of  the 
court  and  forwarded  to  the  convening  authority.) 


RECORD  OF  A  SUMMART  COURT. 

Sec.  I.— Form  for  Record.^ 

(Surname.)  (Christiau  name.) 

Co — -, 

(Rank.)  (Regiment  or  corps.) 

Number  of  case . 

RECORD    OF   SUMMARY   COURT. 

Trial  of  the  man  named  above  by  court  appointed  by 
Orders,  No. ,  Headquarters , ,  190 — . 

FORMER  SERVICE. 


Date  of  enlistment.        Date  of  discharge.      Character  given  on  discharge 


Date  of  present  enlistment, ,  190 — . 

Rate  of  pay  per  month, . 

In  arrest  or  confinement  under  present  charges  since 
,  190—. 

Dates  and  serial  numbers  of  previous  convictions  with 
sentences  within  one  year  preceding  commission  of 
offense  and  during  current  enlistment: . 

1  Blank  forms  for  summary  court  record  and  for  monthly  report  of  cases 
tried  (page  161,  post),  size  3%  by  83^  inches,  will  be  furnished  by  The  Adju- 
tant-General of  the  Army.  The  form  for  summary  court  record  is  also  in- 
tended for  use  in  furnishing  copies  of  the  record,  the  same  to  be  certified  to 
be  "  a  true  copy  "  by  the  commanding  officer  or  adjutant. 


160  RECORD   OF   SUMMARY    COURT. 

Charge  :  Violation Article  of  War. 

Specification:  In  that  he  did . 

Witnesses: 


Officer  preferring  charges. 
I  hereby  consent  to  trial  by  summary  court  on  these 
charges. 

Co. . 

Respectfully  referred  to  the  summary  court  for  trial. 
By  order  of : 

Adjutant. 
Findings: 

Of  specification     : . 

Of  charge     : . 

Sentence: . 

Number  of  previous  convictions  considered, . 


Summary  court. 
Approved ,  190 — . 


Commanding  Officer. 
Sec.  II. — Instructions. 

(On  back  of  form.) 

The  charges  and  data,  as  called  for  on  pages  1  and  2 
of  this  form,  will  be  prepared  in  duplicate  by  the  officer 
preferring  the  charges — one  copy  for  completion  as  the 
record  of  trial,  and  the  other  as  the  copy  for  the  com- 
pany records,  the  latter  to  be  certified  to  be  "a  true 
copy  "  by  the  commanding  officer  or  adjutant. 

Each  case  will  be  given  a  serial  number  in  the  order 
of  trial,  hy  the  trial  officer,  and  bound  in  its  numerical 
order  in  a  book  of  convenient  size,  each  case,  when  com- 
pleted, being  added  to  the  book  by  pasting  or  other 


REPORT    OF    SUMMARY    COURT    CASES.        161 

metliod.  Paper  binding  will  be  sufficient,  a  good  qual- 
ity of  tough  paper  being  used  for  this  purpose. 

Charges  will  be  accompanied  by  the  certified  copies 
of  previous  convictions '  on  file  with  the  company  rec- 
ords. If  the  charges  be  referred  to  the  summary  court 
for  trial,  the  copies  will  be  returned  to  the  company 
records  immediately  after  trial.  If  the  charges  be  re- 
ferred to  a  garrison  or  regimental  court-martial  (this 
form  being  used  as  a  charge  sheet),  the  copies  of  pre- 
vious convictions  will  accompany  them,  but  will  be 
returned  to  the  company  records  immediately  after 
trial.  When  the  copies  of  previous  convictions  accom- 
pany charges  referred  to  a  general  court-martial  for 
trial  they  will  be  returned  to  the  company  records  im- 
mediately after  trial,  and  copies  thereof,  made  and  cer- 
tified by  the  judge-advocate,  will  be  attached  to  the 
record  of  trial. 

If  the  only  officer  present  with  command  sits  as  sum- 
mary court  no  approval  of  sentence  is  required,  but  he 
will  sign  the  sentence  as  such  officer  and  affix  the  date 
of  signature. - 

This  form  is  printed  in  copying  ink,  and  when  filled 
in  on  the  typewriter  a  copyable  ribbon  will  be  used. 


MONTHLY  REPORT  OF  SUMMARY  COURT  CASES. 

FORM    FOR   REPORT. 

(Surname.)  (Cbristiau  name.) 

,Co.. , 

(Rank.)  (Regiment  or  corps.) 


REPOKT    OF   TRIALS    BY    SIJIMARY    COURT. 

At . 

During  the  month  of ,  190 — . 

Number  of  case . 

Charge     :  Violation Article  of  War. 

Synopsis  of  specification  or  of  specifications: 

1  See  page  48,  par.  2,  and  page  80,  pur.  11,  ante. 

2  Par.  966,  A.  R. 

50963 11 


162      RECORD    OF    GARRISON    COURT-MARTIAL. 

Finding     : . 

Number  of  previous  convictions  considered . 

Rate  of  pay  per  month . 

Consent  in  writing  to  trial.     ("  Yes  "  or  "  No  ") . 

Sentence:  (If  mitigated,  give  sentence  as  mitigated 
only.     Signature  of  trial  officer  not  to  be  copied.) 

Date  of  approval  or,  if  there  be  no  approval,  of  sen- 
tence,   ,  190—. 

INSTRl'CTIONS. 

This  report  covers  one  case  only  and,  with  other  re- 
ports covering  the  cases  tried  during  the  month,  will 
be  transmitted  to  department  headquarters  on  the  last 
day  of  the  month  for  file  (after  examination)  in  the 
office  of  the  judge-advocate  of  the  department  in  alpha- 
betical order  under  the  name  of  party  tried.  At  recruit 
depots  and  recruiting  stations  and  other  places  exempted 
from  the  jurisdiction  of  commanders  of  territorial  divi- 
sions and  departments  the  reports  will  be  forwarded 
directly  to  The  Adjutant-General  of  the  Army.  After 
having  been  retained  on  file  for  two  years  the  reports 
may  be  destroyed. 


RECORD  OF  A  GARRISOX  COURT- MARTIAL. i 

Sec.  I.— Form  for  Record. 

Case . 

Proceedings  of  a  garrison  court-martial  convened  at 

,  pursuant  to  the  following  order: 

Fort , 

,19-. 

Orders,    ) 
No. .  ) 

A  garrison  court-martial  will  convene  at  this  post  at 
o'clock  a.  m.,  on ,  19 — ,  or  as  soon  there- 

1  The  form  of  record  for  a  garrison  court-martial  differs  from  that  for  a 
general  court-martial  onlj'  in  respect  to  the  form  of  the  order  appointing  tlie 
court.  The  form  here  given  is  that  for  a  case  in  which  a  plea  of  "  Guilty  ' ' 
is  entered;  if  the  prisoner  pleads  "  Not  guilty,"  or  makes  a  special  plea,  the 
form  for  record  of  a  general  court  will  be  followed. 


RECORD    OF    GARRISON    COURT-MARTIAL.       163 

after  as  practicable,  for  the  trial  of  (such  persons  as 
have  refused  to  consent  in  writing  to  trial  by  summary- 
court)  . ' 

DETAIL    FOR   THE    COUET. 

Captain . 

1st  Lieutenant . 

2d  Lieutenant . 

2d  Lieutenant ,  judge-advocate. 

By  order  of : 

(Signed) , 

1st  Lieutenant , 

Adjutant. 

Fort , 

,19-. 

The  court  met,  pursuant  to  the  foregoing  order,  at 
o'clock  — .  m. 

PRESENT. 

Captain . 

1st  Lieutenant . 

2d  Lieutenant . 

2d  Lieutenant ,  judge-advocate. 

The  court  then  proceeded  to  the  trial  of  Private 

,  Company , Infantry,  who,  having  refused 

to  consent  in  writing  to  trial  by  summary  court,  was 
brought  before  the  court,  and  ha\'ing  heard  the  order 
convening  it  read,  was  asked  if  he  had  any  objection  to 
being  tried  by  any  member  named  therein;  to  which  he 
replied  in  the  negative. 

The  members  of  the  court  and  the  judge-advocate 
were  then  duly  sworn,  and  the  accused  was  arraigned 
upon  the  following  charge  and  specification : 

Charge:  ^ . 

Specification: . 

To  which  the  prisoner  pleaded: 

To  the  specification,  "  Guilty." 

To  the  charge,  "  Guilty." 

1  See  page  84,  par.  6,  lude. 

2Tbe  sisruature  of  the  otticer  pieferriiig  the  chaige  will  uot  be  entered  iu 
the  record. 


1G4      RECORD    OF    GARRISON    COURT-MARTIAL. 

{In  case  testimony  is  taken,  it  is  not  recorded.') 

The  judge-advocate  announced  that  the  prosecution 
here  rested. 

The  prisoner  stated  that  he  had  no  testimony  to  offer 
or  statement^  to  make. 

The  accused  and  judge-advocate  then  withdrew,  and 

the  court  was  closed  and  finds  the  accused,  Private 

,  Company , Infantry. 

Of  the  specification,  "Guilty." 

Of  the  charge,  "  Guilty." 

The  judge-advocate  and  the  accused  were  then  recalled 
and  the  court  opened;  and  the  judge-advocate  stated 
that  he  had  no  evidence  of  previous  convictions  to 
submit,  {or)  read  the  evidence  of  previous  con- 
victions. 

The  accused  and  judge-advocate  then  withdrew,  and 

the  court  was  closed  and  sentences  him,  Private 

,  Company , Infantry,  etc. 

The  judge-advocate  was  then  recalled  and  the  court 
at .  m.,  etc. 

Captain , 

President. 

Sd  Lieut. , 

Judge- Advocate. 
{A  sine  die  adjournment  will  he  added  to  the  last  case 
before  the  court,  and  the  record  of  each  case  folded  and 
indorsed  in  the  same  manner  as  that  for  a  general 
court  martial.) 

1  Piir  988,  A.  R.  The  record  must  give,  tho  names  of  witnesses  examined, 
both  for  the  prosecution  and  defense,  and  will  state  the  fact  as  to  their 
having  been  duly  sworn.  If  the  accused  be  sworu  as  a  witness  the  record 
should  show  that  it  was  at  his  own  request. 

-Statements  and  arguments  will  not  be  reduced  to  writing  in  the  record. 


RECORD  OF  REGIMENTAL  COURT-MARTIAL.    1G5 

Sec.  IL— Remarks  on  the  Record. 

1.  The  decision  and  orders  of  the  post  commander, 
properly  dated  and  over  his  official  signature,  will  follow 
immediately  after  the  sentence,  adjournment^  or  other 
final  proceeding  of  the  court  in  the  case. 

2,  "  The  complete  proceedings  of  a  garrison  or  regi- 
mental court,  except  when  convened  at  recruit  depots 
and  recruiting  stations  and  other  places  exempted  from 
the  jurisdiction  of  commanders  of  territorial  divisions 
and  departments  by  paragraph  187,  will  be  transmitted 
without  delay  by  the  post  or  regimental  commander  to 
department  headquarters.  Where  such  courts  were 
convened  at  recruit  depots,  recruiting  stations,  and 
other  exempted  places,  the  reports  and  records  of  such 
courts  will  be  forwarded  directly  to  The  Adjutant-Gen- 
eral of  the  Army."  ^ 


RECORD    OF  A   REGIMENTAL    COURT- MARTI AL.2 

Case . 

Proceedings  of  a  regimental  court-martial  convened 

at ,  pursuant  to  the  following  order: 

Fort , 

, ,  19-. 

Orders, 

No. 

A  regimental  court-martial  will  convene  at  this  post 
at o'clock  a.  m.,  on , ,  19—,  or  as  soon  there- 
after as  practicable,  for  the  trial  of  (such  persons  as 
have  refused  to  consent  in  writing  to  trial  by  summary 
court).^ 

DETAIL    FOR    THE    COURT. < 

{Complete  record  as  in  case  of  garrison  court-martial.) 

iPar.  991,  A,  R. 

2  The  form  of  record  for  a  regimental  court  differs  from  that  for  a  garrison 
or  a  general  court  only  in  respect  to  the  order  conveuing  the  court. 

3  See  page  85,  par.  3,  ante. 

*See  page  85,  par.  2,  and  page  108,  note  1,  ante. 


166      PROCEEDINGS    OF   RETIRING    BOARD. 

Case  No. . 

proceedings  of  a  retiring  board. 

Proceedings  of  an  Army  retiring  board  convened  at 
by  virtue  of  the  following  orders  : 

Special  Orders,  |  WAR  DEPARTMENT, 

No. .         f  Washington, ,  190-. 


10.  Under  instructions  from  the  President,  and  in 
accordance  with  section  1246,  Revised  Statutes,  an  army- 
retiring  board  is  appointed  to  meet  at , ,  from 

time  to  time,  at  the  call  of  the  president  of  the  board, 
for  the  examination  of  such  officers  as  may  be  ordered 
before  it. 

DETAIL    FOR   THE    BOARD. 

Colonel ,  —  Infantry. 

Lieutenant  Colonel ,  adjutant  general. 

Major ■ ,  Medical  Corps. 

Major ,  —  Infantry. 

First  Lieutenant ,  Medical  Corps. 

First  Lieutenant ,  —  Infantry,  recorder. 

Such  journeys  as  it  may  be  necessary  for  the  mem- 
bers and  recorder  of  the  board  to  make  in  attending  its 
sessions  and  returning  to  their  proper  stations  are  neces- 
sary for  the  public  service. 

***** 
By  order  of  the  Secretary  of  War: 


Major  General,  Chief  of  Staff. 
Official  : 


Adjutant  General. 


PROCEEDINGS   OF   RETIRING   BOARD.       167 

, ,  19-. 

The  board  met  pursuant  to  the  foregoing  order  at  11 
o'clock  a.  m. 

PKESENT, 

Colonel ,  —  Infantry. 

Lieutenant  Colonel ,  adjutant  general. 

Major ,  Medical  Corps. 

Major ,  —   Infantry. 

1st  Lieutenant .  Medical  Corps. 

1st  Lieutenant ,  —  Infantry,  recorder. 

Captain ,  ,  appeared  before  the  board 

pursuant  to  par.  ,  Special  Orders  No.  ,  War 

Department,  dated  ,  19 — ,  and  stated  that  he  did 

not  desire  counsel;  (or,  introduced as  counsel. ) 

The  order  convening  the  board  was  then  read,  and 

Captain was  asked  if  he  had  any  objection  to 

offer  to  any  member  present;  to  which  he  replied  in  the 
negative. 

(or)  that  he  objected  to on  the  following 

grounds: 

{Insert  objections.) 

The  challenged  member  stated. 

{Insert  the  statement  of  the  challenged  member,  who 
should  be  requested  to  respond  to  the  challenge  and  in- 
form the  board  upon  its  merits.  Should  the  officer  before 
the  board  for  examination  desire  to  put  the  challenged 
member  on  his  voir  dire,  the  record  should  continue:) 

Captain ,  having  requested  that  the  chal- 
lenged member  be  sworn'  on  his  voir  dire, ■ 

was  duly  sworn  by  the  recorder,  and  testified  as  follows: 

Question  by  Captain : 

*  *  *  *  * 

The  board  was  then  closed,  and,  on  being  opened,  its 
decision  was  announced  that  the  objection  was  not  sus- 
tained, {or)  that  the  objection  was  sustained.     {In  the 

1  For  form  of  oath  see  page  31,  ante. 


168        PROCEEDINGS    OF   RETIRING   BOARD. 

latter  case  the  record  should  state  that  the  challenged 
member  then  withdi^ew.) 

Captain was  then  asked  whether  he  objected 

to  any  other  member;  to  which,  etc.,  as  before.^ 

The  members  of  the  board  and  the  recorder  ^  were 
then  duly  sworn. 

{If  the  officer  desires  to  be  retired,  the  record  will  con- 
tinue:) 

Captain was  then  asked  whether  he  desired 

to  be  retired,  and  answered  in  the  affirmative.  He  was 
then  duly  sworn  as  a  witness,  and  testified  as  follows: 

Question  by  the  recorder  (or  by  the  board): 

Q.  Please  state  the  nature  of  your  disability  and  its 
cause,  and  how  long  you  have  suffered  from  it? 

A.  ( The  officer  can  here  make  an  oral  statement  or  sub- 
mit a  ivritten  one.  If  a  ivritten  statement  is  submitted 
the  record  will  state:) 

The  witness  submitted  a  written  statement,  which  was 
read  to  the  board,  and  is  hereto  attached  marked  "A." 

Q.  Is  the  statement  submitted  by  you  correct? 

A.  Yes. 

{The  board  may  then  ask  further  questions.) 

Q.  Do  you  desire  to  make  any  further  statement  ? 

A.  . 

( When  the  officer  objects  to  retirement,  he  will  not  be 
examined  at  this  stage  of  the  proceedings,  but  may  intro- 
duce evidence  or  make  a  statement,  as  hereinafter  indi- 
cated.) 

iRve  being,  under  sec.  1246,  R.  S.,  the  minimum  number  of  members  of 
a  retiring  board,  it  must,  when  reduced  below  that  number  by  challenge,  or 
if  the  board  is  left  without  the  proportion  of  medical  officers  required  by 
said  section,  adjourn  and  report  the  facts  to  the  convening  authority.  When 
the  board  again  meets  the  officer  being  examined  will  be  accorded  the  right 
of  challenge  as  before. 

2  If  there  be  a  reporter,  he  will  also  be  sworn.  For  form  of  oath  see  page 
U,ante. 


PROCEEDINGS   OF   RETIRING   BOARD.      169 

Major ,  surgeon,  a  member  of  the  board,was 

then  duly  sworn,  and  testified  as  follows: 

Q.  Please  submit  to  the  board  the  result  of  your  ex- 
amination of  Captain . 

The  witness  submitted  a  written  report  signed  by  him- 
self and  Assistant  Surgeon ,  also  a  member  of 

the  board,  which  was  read  to  the  board  and  is  attached, 
marked  "  B." 

Q.  From  what  cause  does  Captain — 's  disa- 
bility proceed  ? 

A.  . 

Q.  Is  the  disability  permanent? 
.  A.  . 

Q.  Is  Captain 's  disability  such  as  to  incapacitate 

him  for  active  service  ? 

A.  . 

***** 

{The  examination  of  the  witness  should  he  conducted 
so  as  to  bring  out  all  material  facts  on  the  lines  indi- 
cated.) 

Captain stated  that  he  had  no  question  to 

ask,  {or)  asked  the  following  questions: 

***** 

( The  other  medical  member  of  the  hoard  should  then 
he  similarly  interrogated.) 

The  recorder  then  submitted  certain  papers  referred 
to  the  board  from  the  Office  of  The  Adjutant  General 
of  the  Army,  which  were  read  to  the  board,  and  are  at- 
tached, marked . 

Captain had  no  further  evidence  to  submit 

nor  statement  to  make.  {When  there  is  such  evidence 
or  statement,  the  record  will  didy  set  it  forth.) 

The  board  was  then  closed  for  deliberation,  and,  hav- 
ing maturely  considered  the  case,  finds  that  Captain 

is  incapacitated  for  active  service  and  that  the 

cause  of  said  incapac'ty  is .    And  the  board  further 


170  FORMS   FOR   SENTENCES. 

finds  that  said  incapacity  is  {or  is  not)  an  incident  of 
service. 
The  board  then  adjourned.  ^ 


-,  President  of  the  Board.  ^ 

Recorder. 


FORMS   FOR   SENTENCES. 

In  sentences  imposing  a  loss  of  rank  or  files  upon  an 
officer  the  court  may  fix  a  place  on  the  army  list  where 
the  name  of  the  accused  will  be  placed  as  a  result  of  the 
sentence,  as,  for  instance,  at  the  foot  of  the  list  of  first 
lieutenants  of  infantry,  or  the  court  may  mention  the 
number  of  files  to  be  lost,  as,  for  instance,  to  lose  ten 
files  in  military  rank.  In  this  case  the  court  should  not 
undertake  to  state  where  on  the  army  list  the  name  of 
the  ficcused  will  appear. 

Yoriail.  Reduction:  *  *  *  "  to  be  reduced  to  the 
ranks."  ^ 

1  {Or  ivhen  the  board  wishes  to  hear  the  record  read:) 

The  board  then  adjourned  to  meet at o'clock  — .  m. 


Recorder. 

SECOND    day's   proceedings. 

The  board  met  pursuant  to  adjournment. 

Present:  All  the  members  and  the  recorder. 

The  foregoing  proceedings  were  then  read  and  approved. 

The  board  then  adjourned. 


,  President  of  the  Board. 

Recorder. 

2  It  is  not  necessary  that  the  proceedings  should  be  authenticated  by  the 
signatures  of  all  the  members  of  the  board. 

3  See  pages  50  and  (>(»,  and  page  81,  par.  13,  (uite. 


SUMMONS   FOR   MILITARY    WITNESS.       171 

Form  2.  Confinement:    *    *    *     "  to  be  confined  at 

hard  labor,  ^  under  charge  of  the  post  guard,  for ( — ) 

days." 

Forms.  Forfeiture:    *    *    *    "to  forfeit  (— ) 

dollars  of  his  pay,"^  now  due  or  to  become  due."  ^ 

Form  4.  Confinement  and  forfeiture:  *  *  *  "to 
be  confined  at  hard  labor,  under  charge  of  the  post  guard, 

for ( — )  months,  and  to  forfeit ( — )  dollars  per 

month  for  the  same  period." 

Form  5.  Dishonorable  discharge  and  forfeiture  of  pay 
and  allowances:  *  *  *  "  to  be  dishonorably  dis- 
charged the  service  of  the  United  States,  forfeiting  all 
pay  and  allowances  due  him." 

Form  6.  Dishonorabledischarge,forfeitureofpayand. 
allouxinces,  and  confinement :  *  *  *  "  to  be  dishon- 
orably discharged  the  service  of  the  United  States,  for- 
feiting all  pay  and  allowances  due  him,  and  to  be  confined 
at  hard  labor  at  such  post  {or,  in  such  penitentiary) 
{or,  at  such  place)  as  the  reviewing  authority  may  direct, 
for ( — )  years." 


SUMMONS  FOR  MILITARY  TVITNESS.* 


To 


You  are  hereby  summoned  to  appear  on  the day 

of  ,  19 — ,  at  o'clock  — .  m. ,  before  a  general 

court-martial,  convened  at ,  by  Special  Orders, 

1  Unless  hard  labor  be  imposed  by  a  sentence  it  can  not  be  required  of  the 
prisoner. 

^Detention  of  pay  is  no  longer  authorized;  and  under  the  acts  of  February 
12,  1895  (28  Stat.  L.,  655),  and  March  16,  1896  (28  Stat.  L.,  60),  pay  can  no 
longer  be  retained. 

3  By  adding  the  words  "now  due  or  to  become  due"  the  pay  rolls  will 
generally  be  simplified,  by  permitting  all  of  the  forfeiture  to  be  collected  at 
the  next  payment. 

•^See  par.  11,  page  38,  ante. 


172  SUBPCENA   DUCES    TECUM. 

No. ,  Headquarters ,  dated  ,  19 — ,  as 

a  witness  for  the in  the  case  of . 


Judge- Advocate  of  the  Court- Martial. 


SUBPCENA^  FOR  CIVILIAN  WITNESS. 

United  States  ) 

vs.  [•  Subpoena. 

The  President  of  the  United  States,  to ,  greeting: 

You  are  hereby  summoned  and  required  to  be  and 

appear  in  person  on  the day  of ,  19 — ,  at  

o'clock  — .  m.,  before  a  general  court-martial  of   the 

United  States,  convened  at ,  by  Special  Orders, 

No. ,  Headquarters ,  dated ,  19 — , 

then  and  there  to  testify  and  give  evidence  as  a  witness 

for  the in  the  above-named  case.    And  have  you 

then  and  there  this  precept. 
Dated  at ,  this day  of ,  19 — . 


Judge-Advocate  of  the  Court-Martial. 


SUBPCENA  1  DUCES  TECUM. 

{Civilian  witness.) 


United  States 

vs.  )■  Subpoena. 


The  President  of  the  United  States,  to ,  greeting: 

You  are  hereby  summoned  and  required  to  be  and 

appear  in  person  on  the day  of  ,  19 — ,  at 

o'clock  — .  m.,  before  a  general  court-martial  of  the 

United  States,  convened  at ,  by  Special  Orders, 

No. ,  Headquarters ,  dated ,  19—, 

then  and  there  to  testify  and  give  evidence  as  a  witness 

1  Fees  must  be  tendered  or  paid  under  act  of  March  2,  1901,  page  131, 
ante.     See  also  par.  1,  pa^e  43.  auff. 


SUBPCENA   FOR   DEPOSITION.  173 

for  the in  the  above-named  case;  and  you  are  hereby- 
required  to  bring  with  you,  to  be  used  in  evidence  in 
said  case,  the  following-described  documents,  to  wit: 

.     And  have  you  then  and  there  this  precept. 

Dated  at ,  this day  of ,  19 — . 


Judge-Advocate  of  the  Court-Martial. 


SUBPCENA  FOR  CIVILIAN  AVITNESS. 

{For  deposition.) 
United  States  j 

vs.  -  Suhpcena. 

The  President  of  the  United  States,  to ,  greeting: 

You  are  hereby  summoned  and  required  to  be  and 

appear  in  person  on  the  day  of  ,  19 — ,  at 

o'clock  — ,  m.,  before at ,  detailed  to  take 

your  deposition  for  use  before  a  general  court-martial 

of  the  United  States,  convened  at ,  by  Special 

Orders,  No.  ,  Headquarters ,  dated 

,  19—,  then  and  there  to  testify  and  give  evidence 

as  a  witness  for  the in  the  above-named  case.     And 

have  you  then  and  there  this  precept. 
Dated  at ,  this day  of ,  19—. 

Judge-Advocate  of  the  Court-Martial. 


RETURN    OF    SERVICE. 

{Indorsement  of  preceding  writs.y 
United  States 


,  19-. 

I  certify  that  I  made  service  of  the  within  subpoena 
on ,  the  witness  named  therein,  by  personally 

lOn  the  back  of  each  form  of  writ  are  forms  for  both  certificate  and 
affidavit. 


174  WARRANT    OF   ATTACHMENT. 

delivering  to  him  in  person  a  duplicate  of  the  same  at 
,  on  the day  of ,  19—. 

'  I  ss. 

,  being  duly  sworn,  on  his  oath  states  that 

the  foregoing  certificate  is  true. 

Subscribed  and  sworn  to  this day  of .  19 — , 

before  me.^ 


WARRANT  OF  ATTACHMENT. 


United  States 
vs. 


The  President  of  the  United  States,  to ,  greeting: 

Whereas, ,  of ,  was  on  the day 

of ,  19 — ,  at ,  duly  subpoenaed  to  appear  and  at- 
tend at , ,  on  the day  of ,  at o'clock 

— .  m.,  before  a  general  court-martial  duly  convened  by 
Special  Orders,  No. ,  dated  Headquarters  Depart- 
ment of , ,  19 — ,  to  testify  on  the  part  of 

the in  the  above-entitled  case;  and  whereas  he  has 

failed  to  appear  and  attend  before  said  general  court- 
martial  to  testify  as  by  said  subpoena  required,  and 
whereas  he  is  a  necessary  and  material  witness  in  behalf 

of  the in  the  above-entitled  case. 

NoWy  therefore,  by  virtue  of  the  power  vested  in  me, 
the  undersigned,  as  judge-advocate  of  said  general  court- 
martial,  by  section  1202  of  the  Revised  Statutes  of  the 
United  States,  you  are  hereby  commanded  and  empow- 
ered to  apprehend  and  attach  the  said ,  wher- 
ever he  may  be  found  within  the  of  ,^  and 

1  After  service,  as  above  indicated,  the  original  subpoena  should  be  at  once 
returned  to  the  judge-advocate  of  the  court;  if  the  \vitness  can  not  be  found, 
the  judge-advocate  should  be  so  informed. 

2  State,  Territory,  or  District  where  the  court  sits. 


INTERROGATORIES   AND   DEPOSITION.     175 

forthwith  bring  him  before  the  said  general  court- 
martial  assembled  at ,  to  testify  as  required  by- 
said  subpcBna. 


Judge- Advocate  of  said 
General  Court-Martial. 
Dated , ,  19—. 


INTERROGATORIES  AND  DEPOSITION.^ 

INTERROGATORIES. 

The  United  States  ) 
vs. 

The  following  interrogatories  and  cross-interrogatories 

to  be  propounded  under  the  91st  Article  of  War,  to 

,  stationed  {or  residing)'-  at ,  a  witness  for 

the  prosecution  (or  defense)"^  in  the  above -entitled  case 
now  pending  and  to  be  tried  before  the  general  court- 
martial  convened  at ,  by  paragraph ,  Special 

Orders  No.  — ,  Headquarters  Department  of ,  dated 

^  f. \  accepted  by  the  court  in  open  session, 

'  '  ^^^  )  agreed  upon  by  both  parties  in  ad- 
the  —  having  been  given  reasonable  opportunity  to  sub- 
vance  of  the  assembling  of  the  court  and  subject  to  excep- 

mit  cross-interrogatories  I  ,^^^  ^^^  respectfully  for- 
tions  when  read  m  court    )  ^  •' 

warded  to  the  convening  authority  with  the  request  that 
some  suitable  officer  may  be  designated  to  take,  or  cause 
to  be  taken,  the  deposition  of  said  witness  thereon: 

First  interrogatory:  Are  you  in  the  military  service  of 
the  United  States?  If  yea,  w^hat  is  your  full  name,  rank, 

1  See  page  40,  ante. 

-  Erase  the  word  inappropriate  to  the  case.  With  the  consent  of  the  oppo- 
site party  the  deposition  of  a  witness  residing  within  the  State,  Territory, 
or  District  in  which  the  court  sits  may  be  taken  and  read  in  evidence.  A 
written  stipulation  signed  by  both  parties  should,  in  such  a  case,  be  attached 
to  this  paper  before  it  is  signed. 

3  Erase  the  line  inappropriate  to  the  case. 


176   INTERROGATORIES   AND   DEPOSITION. 

organization,  and  station?    If  nay,  what  is  your  full 
name,  occupation,  and  residence? 

Second  interrogatory:  Do  you  know  the  accused,  a 

in ?    If  yea,  how  long  have  you  known  him? 

Third  interrogatory:  ■ ? 

Etc. 

First  cross-interrogatory: ? 

Etc. 

First  interrogatory  by  the  Court: ? 

Etc. 
Dated  at ,  this day  of ,  19—. 


Judge-Advocate.  President.^ 

Headquarters  Department  of . 

,  19-. 

,  stationed  {or  residing) ^  at ,  is 


hereby  designated  to  take,  or  cause  to  be  taken,  the 

deposition  of  the  said ,  a  witness  on  the  part  of 

the in  the  case  of  the  United  States  against 

,  now  pending  before  a  general  court-martial  at 

.     The  deposition,  when  taken,  to  be  sent  by 

him  to ,  the  president  of  said  court  at . 

By  command  of General . 

Adjutant-General. 


DEPOSITION. 

,  the  witness  above  named,  having  been  first 

duly  sworn  by  me, ,  a^  ,  stationed  {or 

1  If  taken  in  advance  of  the  assembling  of  the  court,  the  interrogatories 
should  be  signed  by  the  judge-advocate  and  the  accused  instead  of  the 
president  and  judge-advocate. 

2  Erase  the  word  inappropriate  to  the  case. 

•'^Insert  official  character:  as  "Trial  Officer  Summary  Court,"  "Notary 
Public,"  etc. 


ACCOUNT   OF  'CIVILIAN   WITNESS.          177 

residing)'  at ,  doth  depose  and  say  for  full 

answers  to  the  foregoing  interrogatories,  as  follows: 

To  the  first  interrogatory  : . 

Etc.  . 

(Signature  of  witness.) 

Subscribed  and  sworn  to  before  me  this day  of 

,  19-. 


I, ,  the  oflBcer  designated  to  cause  the  depo- 
sition of  the  said to  be  taken  on  the  foregoing 

interrogatories  and  cross-interrogatories,  do  certify  that 
it  was  duly  made  and  taken  under  oath. 


ACCOUXT  OF  CIVILIAN^  WITNESS^  NOT  IN 
GOVERNMENT  EMPLOY. 

Form  13A— Pay  Department. 

Voucher  No. .  Pay,  190— 

The  United  States  to ,  Civilian  witness.  Dr. 


From ,  190—,  to ,  190—: 

For  mileage  from to and  return,  being 

miles,  at  five  cents  per  mile 

For  allowance  while  in  attendance  on  said  court, 

from  ,  190—.  to  ,  190—,  as  per  certificate 

of  Judge-Advocate  hereon,  days,  at  $ —  per 

day 


TotaL 


Cts. 


1  Erase  the  word  inappropriate  to  the  case. 

2  The  jurat  to  be  signed  by  the  officer  administering  the  oath,  who  will 
add  his  official  designation.  (See  page  40,  par.  4,  uute.)  If  the  oath  is  ad- 
ministered by  a  notary  public,  his  seal  will  be  affixed  to  the  deposition. 

3 This  certificate,  regarded  as  the  formal  return,  will  be  signed  by  the  officer, 
civil  or  military,  who  has  been  designated  to  take,  or  cause  to  be  taken,  the 
deposition  ;  and  will  be  signed  by  him  whether  or  not  he  is  the  officer  who 
administered  the  oath. 

4  The  forms  for  "  Summons  for  a  military  witness,"  for  "  Subpoenas  for  a 
civilian  witness,"  for  a  "  Warrant  of  attachment,"  and  for  a  deposition  are 
obtained  from  The  Adjutant-General.     The  forms  for  accounts  of  civilian 
witnesses  and  of  reporters  are  obtained  from  the  Paymaster-General. 
509G3 12 


178  ACCOUNT    OF    CIVILIAN   WITNESS. 

(Certification  and  account  to  be  completely  filled  in  by  Judge- Advocate,  or 
before  signature  by  Judge-Advocate,  without  alteration  or  erasure  thereafter.) 

I  certify  that ,  a  civilian  not  in  Govern- 
ment employ,  has  been  in  attendance  as  a  material 
witness  from  ,  190—,  to  ,  190 — ,  inclusive,  be- 
fore a. court-martial,  duly  convened  at  this  place, 

and  that  he  was  duly  summoned  thereto  from and 

was  not  furnished  transportation  by  the  Government 
for  any  portion  of  the  journey. 

(XOT    TO    BE    SIGNED    IN    DUPLICATE.) 

Place, .  , 

Judge- Advocate.^ 

Paid  by  Check  No.  ,  on  ,  dated  ,  190—, 

for  $ . 

(To  be  completely  filled  in  before  signature  by  payee  without  alteration 
or  erasure  thereafter.) 

Received    ,   190—,   of    ,    Paymaster,    U.   S. 

Army,  m  cash ^^j^  dollars,  in  full  of  above  account. 

(not    to  BE    SIGNED    IN    DVPLICATE.) 

,  Witness. 

(The  claimant  will  not  sign  the  above  receipt  except  when  the  payment  ia 
made  in  cash.) 

ACCOUNT   OF    CIVILIAN  WITNESS    (BY  DEPOSI- 
TION) NOT  IN  GOVERNMENT  EMPLOY. 

Form  13C— Pay  Department. 

Voucher  No. .  Pay,  190 — 

TJie  United  States,  to ,  Dr. 


Dollars, 

Ots. 

From ,  190—,  to ,  190—: 

For  mileage  from to and  return,  being 

For  allowance  while  in  attendance,  giving  deposition 

for  use  before  said  court,  from ,  190 — ,  to , 

190—,  as  per  certificate  hereon, days,  atg 

per  day  _ 

Total 

1  If  the  witness  be  summoned  for  attendance  before  a  summary  court,  the 
summary  court  officer  will  make  the  necessary  certificate.  (Digest  Opin. 
J.  A.  G.,  sec.  2406.) 


ACCOUNT    OF    CIVILIAN   WITNESS.         179 

(Certification  and  account  to  be  completely  filled  in  by  officer,  or  before 
signature  by  officer,  without  alteration  or  erasure  thereafter.) 

I  certify  that ,  a  civilian  not  in  Govern- 
ment employ,  has  been  in  attendance  giving  deposition 
for  tise  of  a  court-martial  convened  under  attached 

orders  from  ,  190—,  to  ,  190—,  inclusive,  and 

that  he  was  duly  summoned  thereto  from  ,  and 

was  not  furnished  transportation  by  the  Government 
for  any  portion  of  the  journey. 

(not  to  be  signed  in  duplicate.  ) 

Place, .  5 

Date, .  , 

Judge-Advocate  or  other  commis.sioned  officer. 

Paid  by  Check  No.  ,  on  ,  dated  ,  190—, 

for  $ . 

(To  be  completely  filled  in  before  signature  by  payee  without  alteration 
or  erasure  thereafter.) 

Received    ,    190—,   of ,    Paymaster,  U.    S. 

Army,  in  cash yoo  dollars,  in  full  of  above  account. 

(not  to  be  signed  in  duplicate.) 

,  Witness. 

(The  claimant  will  not  sign  the  above  receipt  except  when  the  payment  is 
made  in  cash.) 

NOTES  ON  FORMS  13A  AND  13C. 

The  Paymaster  is,  under  paragraphs  999  to  1003, 
Army  Regulations,  1908,  governed  by  the  following 
rules  in  the  treatment  of  voucher  for  travel  expenses  of 
civilian  witnesses  before  military  courts: 

1.  The  voucher  must  be  accompanied  by  authenti- 
cated copy  of  the  order  convening  the  court  or  appoint- 
ing summary  court. 

2.  The  certificate  of  the  jndge-advocate  or  summary 
court  officer  (on  face  of  voucher)  is  required  in  all 
cases. 

3.  A  civilian  not  in  Government  employ,  duly  sum- 
moned to  appear  as  a  witness  before  a  military  court, 


180         ACCOUNT    OF   CIVILIAN   WITNESS. 

or  at  a  place  where  his  deposition  is  to  be  taken  for  use 
before  such  court,  will  receive  $1.50  a  day  for  each  day 
of  actual  attendance  for  such  purpose,  and  5  cents  a 
mile  from  place  of  residence  to  place  of  trial  or  taking 
deposition,  and  return,  except  as  follows: 

Porto  Rico  and  Cuba,  $1.50  a  day,  15  cents  a  mile  for 
necessary  travel  by  stage  or  private  conveyance  and  10 
cents  by  railway  or  steamship  line. 

Alaska,  east  of  one  hundred  and  forty-first  degree 
west  longitude,  $2  a  day  and  10  cents  a  mile;  west  of 
that  degree,  $4  a  day  and  15  cents  a  mile. 

Montana,  Wyoming,  Colorado,  New  Mexico,  Arizona, 
Utah,  Idaho,  Washington,  Oregon,  Nevada,  California, 
$3  a  day,  15  cents  a  mile  for  necessary  travel  by  stage 
or  private  conveyance,  5  cents  by  railway  or  steamship 
line,  and  $3  a  day  for  the  time  necessarily  occupied  in 
such  travel.  (See  A.  R.,  1000,  amended  by  G.  O.  128, 
1908.  Also  R.  S.,  848;  sec.  30,  act  June  6, 1900,  31  Stat., 
332;  act  Mar.  2,  1901,  31  Stat.,  954;  act  June  13,  1902,  32 
Stat.,  35;  Regs.  Atty.  Gen.,  July  21,  1902;  act  May  27, 
1908,  Public  141.) 

A  retired  army  officer  is  a  civilian  not  in  Govern- 
ment employ  in  contemplation  of  Army  Regulation 
1000.     (lOComp.,51.) 

Civilian  witnesses,  not  in  Government  employ,  sum- 
moned to  attend  courts-martial  in  the  Philippine 
Islands,  are  entitled  to  the  per  diem  and  mileage 
allowed  witnesses  in  attendance  upon  United  States 
courts,  i.  e.,  $1.50  per  day  for  each  day  in  attendance 
on  the  court,  and  5  cents  per  mile  for  the  distance 
traveled  to  and  from  the  court.  If  furnished  with 
transportation  by  the  Government,  42.858  per  cent  of 
the  5  cents  per  mile  will  be  deducted  as  cost  of  trans- 
portation furnished  and  57.142  per  cent  allowed  for 
subsistence  and  other  expenses  of  the  witness. 

An  employee  of  the  civil  government  of  the  Philip- 
pine Islands,  paid  from  insular  funds,  is  not  in  the 
employ  of  the  Government  within  the  meaning  of 
Army  Regulation  999. 


ACCOUNT    OF    CIVILIAN   WITNESS.  181 

In  case  a  witness  duly  subpoenaed  before  a  general 
court-martial  refuses  to  appear  or  qualify  as  a  witness 
or  to  testify  or  produce  documentary  evidence  as  re- 
quired by  law,  he  will  at  once  be  tendered  or  paid  by 
the  nearest  paymaster  these  fees  and  mileage  and  will 
thereupon  be  again  called  upon  to  comply  with  the  re- 
quirements of  law.  Civilian  witnesses  will  be  paid  by 
the  Pay  Department.     (A.  R.,  1001.) 

4.  The  certificate  of  the  judge-advocate  will  be  evi- 
dence of  the  fact  and  period  of  attendance  and  place 
from  which  summoned,  and  will  be  made  on  the  voucher. 

5.  Upon  execution  of  the  certificate  the  witness  will 
be  paid  upon  his  discharge  from  attendance,  without 
awaiting  performance  of  return  travel.  The  charges 
for  return  journeys  will  be  made  upon  the  basis  of  the 
actual  charges  allowed  for  travel  to  the  court. 

No  other  items  will  be  allowed. 

6.  Travel  must  be  estimated  by  the  shortest  usually 
traveled  route — by  established  lines  of  railroad,  stage, 
or  steamer — the  time  occupied  to  be  determined  by  the 
official  schedules,  reasonable  allowance  being  made  for 
unavoidable  detention. 

7.  Whenever  needed,  judge-advocates  can  procure 
blank  accounts  for  civilian  witnesses  from  any  army 
paymaster  or  the  Paymaster-General's  office.  The  ac- 
counts may  then  be  made  out  upon  the  witness's  dis- 
charge from  attendance.  If  no  paymaster  be  present 
at  the  place  where  the  court  sits,  the  accounts,  authen- 
ticated as  above  directed,  may  be  transmitted  to  any 
paymaster  with  confidence  that  the  witness  will  receive 
his  pay  without  unnecessary  delay. 

8.  Accounts  of  citizen  witnesses  are  not  transferable. 
(See  Circular  13,  A.  G.  O..  1895.) 

9.  Signature  of  witnesses  when  signed  by  mark  must 
be  witnessed. 


182        ACCOUNT   OF   CIVILIAN   WITNESS. 

ACCOUNT    OF    CIVILIAN    WITNESS    IN   GOVERN- 
MENT EMPLOY. 

Form  13B— Pay  Department. 

Voucher  No. .  Pay,  190 — . 

The  United  States,  to ,  Civilian  witness,  Dr. 


From ,  190—,  to ,  190—: 

For  actual  cost  of  travel  from to and  return, 

as  per  memorandum  attached 


For  actual  cost  of  meals  and  rooms  while  traveling  to 
and  from  said  court  between  above  dates,  inclu- 
sive,   days 

For  actual  cost  of  meals  and  rooms  while  in  attend- 
ance on  said  court  from ,  190 — ,  to ,  190 — , 

as  per  certificate  of  the  Judge-Advocate  hereon, 

days  (see  note  7,  post) 


Total. 


I  solemnly  swear  that  the  above  account  is  correct; 
that  I  have  not  been  furnished  with  Government  trans- 
portation for  any  part  of  the  journey  for  which  travel 
fare  is  charged;  and  that  the  journey  was  performed 
without  unnecessary  or  avoidable  delay. 

,  Witness. 

Sworn  to  and  subscribed  before  me  at ,  on  this 

day  of ,  190—. 

Judge- Advocate. 
Paid  by  Check  No. ,  on ,  dated ,  190—,  for 


(To  be  completely  filled  in  before  signature  by  payee  without  alteration  or 
erasure  thereafter.) 

Received ,  190 — ,  of ,  Paymaster,  U.  S.  Army, 

in  cash j^-^  dollars,  in  full  of  above  account. 

(Not  to  be  signed  in  duplicate.) 

,  Witness. 

(The  claimant  will  not  sign  the  above  receipt  except  when  the  payment  is 
made  in  cash. ) 


ACCOUNT   OF   CIVILIAN   WITNESS.         183 

(Certification  and  account  to  be  completely  filled  in  by  Judge-Advocate,  or 
before  signature  by  Judge-Advocate,  without  alteration  or  erasure  thereafter. ) 

I  certify  that ,  a  civilian  in  Government 

employ,  has  been  in  attendance  as  a  material  witness 

fiom ,  190—,  to ,  190—,  inclusive,  before  a 

court-martial,  duly  convened  at  this  place,  and  that  he 
was  duly  summoned  thereto  from . 

(not  to  be  signed  in  duplicate.) 


Judge- Advocate.  ^ 

Place . 

Date ,  190—. 

NOTES  ON  FORM  13B. 

The  Paymaster  is,  under  paragraphs  999  to  1003,  Army 
Regulations,  1908,  governed  by  the  following  rules  in 
the  treatment  of  voucher  for  travel  expenses  of  civilian 
witnesses  before  military  courts: 

1.  The  voucher  must  be  accompanied  by  authenticated 
copy  of  the  order  convening  the  court  or  appointing 
summary  court. 

2.  The  affidavit  of  witness  and  judge-advocate's  or 
summary  court  officer's  certificate  are  required  in  all 
cases. 

3.  A  retired  army  officer  is  a  civilian  not  in  Govern- 
ment employ  in  contemplation  of  Army  Regulation 
1000.     (10Comp.,"51.) 

In  case  a  witness  duly  subpoenaed  before  a  general 
court-martial  refuses  to  appear  or  qualify  as  a  witness 
or  to  testify  or  produce  documentary  evidence  as  re- 
quired by  law,  he  will  at  once  be  tendered  or  paid  by 
the  nearest  paymaster  these  fees  and  mileage  and  will 
thereupon  be  again  called  upon  to  comply  with  the 
requirements  of  law.  Civilian  witnesses  will  be  paid 
by  the  Pay  Department.     (A.  R. ,  1001 . ) 

4.  The  items  of  expenditure  authorized  in  paragraphs 
999  to  1003,  Army  Regulations,  will  be  set  forth  in 
detail  in  a  memorandum  which  will  be  attached  to  each 

1  See  note  1,  page  178,  ante. 


184         ACCOUNT   OF   CIVILIAN   WITNESS. 

voucher.  The  correctness  of  the  items  will  be  attested 
by  the  affidavit  of  the  witness,  to  be  made,  when  practi- 
cable, before  the  judge-advocate. 

5.  The  certificate  of  the  judge-advocate  will  be  evi- 
dence of  the  fact  and  period  of  attendance  and  show 
place  from  which  summoned,  and  will  be  made  on  the 
voucher. 

6.  Upon  execution  of  the  affidavit  and  certificate  the 
witness  will  be  paid  upon  his  discharge  from  attend- 
ance, without  awaiting  performance  of  return  travel. 
The  charges  for  return  journeys  will  be  made  upon  the 
basis  of  the  actual  charges  allowed  for  travel  to  the 
court. 

No  other  items  will  be  allowed. 

7.  Civilian  witnesses  in  Government  employ  will 
receive  as  follows: 

(a)  Amount  actually  paid  for  cost  of  transportation 
or  travel  fare. 

{h)  Amount  actually  paid  for  cost  of  transfers  to  and 
from  railway  stations,  not  exceeding  50  cents  for  each 
transfer. 

(c)  Amount  actually  paid  for  cost  of  one  double  berth 
in  sleeping  car  or  on  steamers  where  an  extra  charge 
is  made  therefor. 

(d)  The  actual  cost  of  meals  and  rooms  at  a  rate  not 
exceeding  $3  per  day  for  each  day  unavoidably  consumed 
in  travel  or  in  attendance  on  the  court. 

8.  Travel  must  be  estimated  by  the  shortest  available 
usually  traveled  route ;  the  charge  for  cost  of  travel — 
items  (a),  (h),  (c) — by  established  lines  of  railroad, 
stage,  or  steamer  should  not  exceed  the  usual  rates  in 
like  cases;  the  time  occupied  to  be  determined  by  the 
official  schedules,  reasonable  allowance  being  made  for 
unavoidable  detention. 

9.  The  voucher,  or  the  order  for  attendance,  will  be 
presumed  to  show  in  all  cases,  by  indorsement  or  other- 
wise, if  transportation  in  kind  or  commutation  of  rations 
has  been  furnished. 


ACCOUNT   OF   CIVILIAN   WITNESS.         185 

Transportation  in  kind  will,  for  any  distance  covered 
thereby,  be  a  bar  to  payment  of  item  (a). 

Indorsements  of  transportation  furnished  are  scru- 
tinized to  ascertain  if  any  part  of  item  (c)  has  been 
included. 

Commutation  of  rations  will  be  a  bar  to  payment  of 
item  (d). 

Transportation  and  commutation  of  rations  will  be  a 
bar  to  any  payment. 

10.  No  per  diem  allowance  can  be  made  where  the 
attendance  upon  court  does  not  require  the  witness  to 
leave  his  station.  (This  applies  only  to  civilians  in 
Government  employ.) 

11 .  Compensation  to  civilians  in  or  out  of  Government 
employ,  for  attendance  upon  civil  courts,  is  payable  by 
the  civil  authorities.     (A.  R.,  1004.) 

12.  If  the  witness  is  in  Government  employ  the  judge- 
advocate  will  state  the  fact.  If  it  does  not  appear  in 
the  certificate  or  elsewhere  in  the  papers,  and  is  not 
known  to  the  pajTuaster,  it  will  be  assumed  that  the 
witness  is  not  in  Government  employ. 

13.  Whenever  needed,  judge-advocate  can  procure 
blank  accounts  for  civilian  witnesses  from  any  army 
paymaster  or  the  Paymaster-General's  office.  The  ac- 
counts may  then  be  made  out  upon  the  witness's  dis- 
charge from  attendance.  If  no  paymaster  be  present  at 
the  place  where  the  court  sits,  the  accounts,  authenti- 
cated as  above  directed,  may  be  transmitted  to  any  pay- 
master, with  confidence  that  the  witness  will  receive 
his  pay  without  unnecessary  delay. 

14.  Accounts  of  citizen  witnesses  are  not  transferable. 
(See  Circular  13,  A.  G.  O.,  1895.) 

15.  Signature  of  witnesses  when  signed  by  mark  must 
be  witnessed. 


186 


ACCOUNT   OF   REPORTER. 


ACCOUNT  OF  REPORTER.! 
Form  27— Pay  Department. 


Voucher  No.  — . 

The  United  States,  to 


Pay,  19- 


Eeporter,  Dr, 


Date. 
190—. 


To  services  as  a  reporter  before  a con- 
vened at ,  puisuant  to  Special  Orders, 

No. ,  Department , ,  190 — : 

To hours  before  the ,  at 

(Court,  board,  or  commission.) 

fl  per  hour 

To words,  at  15  cents  per  100  words 

To words,  at  10  cents  per  100  words 

To words,  carbon  copies,  at  2  cents  per 

100  words 


To days  in  going  to,  in  attendance  on, 

and  returning  from  said ,  at 

(Court,  board,  or  commission.) 
$3  per  day 

To  mileage  for  travel  between and 

in  going  to  and  returning  from  the  court 
being miles,  at  —  cents  a  mile 


Total 


Dollars. 


Cents. 


(Certification  and  account  to  be  completely  filled  in  by  Judge-Advocate, 
before  signature  by  Judge- Advocate,  without  alteration  or  erasure  thereafter.) 

I  CERTIFY  that was  employed  by  me  as  a 

reporter  for  a ,  under  the  annexed  authority,  and 

that  the  account  for  his  services  as  stated  above  is  cor- 
rect and  just. 

(not   to    be    signed    in    nUPLICATE.) 


(Judge-Advocate  or  Recorder.) 


Paid  by  check  No. 


on ,  dated 


-,  19—,  for 


iThe  judge-advocate  of  a  court-martial  in  any  important  case  will  confer 
with  the  officer  of  the  Pay  Department,  whose  duty  it  is  to  pay  the  judge- 
advocate's  vouchers  in  behalf  of  reporters  and  witnesses,  as  to  the  adoption 
of  measures  with  a  view  to  prevent  fraud  in  the  payments  for  services 
rendered  by  reporters  and  witnesses.     (Cir.  No.  74,  W.  I).,  1!»09.) 


ACCOUNT   OF   REPORTER.  187 

Notes  on  Form  27— Pay  Department. 

1.  The  method  of  employment  of  stenographic  re- 
reporters  for  courts-martial,  military  commissions,  or 
courts  of  inquiry,  and  their  compensation  as  provided 
by  paragraph  996,  Army  Regulations,  amended  by  Gen- 
eral Order  132,  War  Department,  1908,  are  as  follows: 

(Here  follows  paragraph  996,  Army  Regulations,  1908, 
as  given  in  paragraph  2,  pages  26  and  27,  ante,  except 
the  last  paragraph  on  page  27.) 

2.  Stenographic  reporters  for  retiring  boards  can  only 
be  employed  on  the  authority  of  the  Secretary  of  War 
obtained  in  advance  of  the  employment.  The  authority 
must  be  filed  with  the  voucher  on  which  payment  is 
made.  (Decision  of  the  Secretary  of  War,  April  24, 
1879.) 

3.  The  authority  for  the  employment  of  a  reporter  for 
court-martial,  court  of  inquiry,  military  commission,  or 
retiring  board,  and  for  carbon  copies  of  proceedings, 
must  be  filed  with  the  voucher  on  which  payment  is 
made. 

4.  The  mileage  for  a  reporter  is  the  same  as  is  allowed 
for  civilian  witnesses  not  in  Government  employ,  except 
that  when  Government  transportation  is  furnished  no 
mileage  is  allowed. 

5.  Copies  of  the  order  appointing  court-martial,  court 
of  inquiry,  military  commission,  or  retiring  board  must 
be  filed  with  the  voucher. 


188      FORM  FOR  GENERAL  ORDERS. 
FORM  FOR  GEXERAI^  ORDERS. 

Headquarters  Department  of  , 

General  Orders,  / 
No. .  \ 

I.  Before  a  general  court-martial  which,  convened  at 

Fort  , ,  pursuant  to  Special  Orders,  No. , 

Headquarters  Department  of , ,  19 — ,  were  ar- 
raigned and  tried  — . 

1.  Private  A B ,  Troop  , U.  S.  Cav- 
alry, alias  Private  C D ,  Company , U. 

S.  Infantry. 

CHAKGES. 

Charge  I:  Desertion,  in  violation  of  the  47th  Article 
of  War. 

Specification  1:  In  that  Private  A B ,  Troop 

, U.  S.  Cavalry,  alias  Private  C D ,  Com- 
pany   , U.  S.  Infantry,  a  soldier  in  the  service 

of  the  United  States,  did  desert  the  same  at on  or 

about  the of  ,  19 — ,  and  did  remain  absent  in 

desertion  until  he  was  apprehended  at ,  on  or  about 

the of ,  19—. 

Specification  2:  In  that  Private  A B ,  Troop 

,  U.  S.  Cavalry,  alias  Private  C D , 

Company  ,  U.  S.  Infantry,  a  soldier  in  the 

service  of  the  United  States,  did  desert  the  same  at 

on  or  about  the of  ,  19 — ,  by  enlisting  under 

the  name  of  C. D ,  in  Company ,  U.  S. 

Infantry,  v^ithout  a  regular  discharge  from  said  Troop 
,  — ^  U.  S.  Cavalry. 

Charge  II:  Fraudulent  enlistment,  in  violation  of  the 
62d  Article  of  War. 

Specification:  In  that  Private  A B ,  Troop , 

U.  S.  Cavalry,  alias  Private  C D ,  Com- 
pany   , U.  S.  Infantry,  a  soldier  in  the  service 

of  the  United  States,  did,  without  a  discharge  from 
said  regiment  of  cavalry,  fraudulently  enlist  in  Com- 
pany  , U.  S.  Infantry,  at  ,  on  the  of 

,  19 — ,  under  tlie  name  of  C D . 


FORM  FOR  GENERAL  ORDERS.      189 


To  the  1st  Specification,  Charge  I:  "  Not  Guilty." 
To  the  2d  Specification,  Charge  I:  "  Not  Guilty." 
To  Charge  I:  "  Not  Guilty. '' 
To  the  Specification,  Charge  II:  "  Not  Guilty." 
To  Charge  II:  "  Not  Guilty." 

FINDINGS. 

Of  the  1st  Specification,  Charge  I:  "  Guilty." 
Of  the  2(1  Specification,  Charge  I:  "  Guilty." 
Of  Charge  I:  "Guilty." 
Of  the  Specification,  Charge  II:  "  Guilty. " 
Of  Charge  II:  "Guilty." 

SENTENCE. 

To  be  dishonorably  discharged  the  service  of  the 
United  States,  forfeiting  all  pay  and  allowances  due 
him,  and  to  be  confined  at  hard  labor  in  the  United 
States  Military  Prison,  Fort  Leavenworth,  Kans.,  for 
(— )  years. 

ACTION.l 

The  sentence  in  the  foregoing  case  of  Private  A 

B ,  Troop  ,  U.   S.  Cavalry,  alias  Private 

C D ,  Company , U.  S.  Infantry,  is  ap- 
proved and  will  be  duly  executed. 

******* 

By  command  of  Brigadier  General : 


Adjutant-  General. 


1  Where  the  sentence  requires  the  confirmation  of  the  President,  the  action 
of  the  convening  authority  and  the  confirmation  of  the  sentence  may  be 
stated  briefly,  varying  with  the  facts,  substantially  as  follows: 

"  The  finding  of  guilty  of  the specification,  charge,  was  disap- 
proved by  the  convening  authority.  The  sentence  having  been  approved 
by  him  and  the  record  of  trial  forwarded  for  the  action  of  the  President, 
under  the  106th  Article  of  War,  the  following  are  his  orders 
thereon  *  *  *" 
or  {if  there  be  no  disapproval  of  any  finding) : 

"The  sentence  having  been  approved  by  the  convening  authority  and 
the  record  of  trial  forwarded  for  the  action  of  the  President,  under  the  106th 
Article  of  War,  the  following  are  his  orders  thereon     *    *    *." 


190  HABEAS    CORPUS — RETURN. 

Form  A. 
HABEAS  CORPUS  BY  UNIT:p:D  STATES  COURT. 

KETUBN    TO    WRIT. 

In  re .     {Name  of  party  held.) 

( Writ  of  habeas  corpus — Return  of  respondent.) 
To  the .     {Court  or  judge.) 

The  respondent,  Major ,  U.S.  Infantry,  upon 

whom  has  been  served  a  writ  of  habeas  corpus  for  the 

production  of -,  respectfully  makes  return  and 

states  that  he  holds  the  said by  authority  of 

the  United  States  as  a  soldier  in  the  United  States  Army 
(o?'  "  as  a  military  convict  under  sentence  of  general 
court-martial  '*)  under  the  following  circumstances: 

That  the  said was  duly  enlisted  as  a  soldier 

in  the  service  of  the  United  States  at  ,  ,  on 

,  19 — ,  for  a  term  of years.     {If  the  offense 

is  fraudulent  enlistment  this  recital  should  be  omitted.) 

{Here  state  the  offense.  If  it  isfraudident  enlistment 
by  representing  hi7nself  to  be  of  age,  it  may  be  stated  as 
follows: ) 

That  on  the day  of  ,  19 — ,  at , ,  the 

said ,  being  then  a  minor,  did  fraudulently 

enlist  in  the  military  service  of  the  United  States  for 

the  term  of  years,  by  falsely  representing  himself 

to  be  over  twenty-one  years  of  age,  to  wit, years 

and months;  and  has,  since  said  enlistment,  received 

pay  and  allowances  {or  either^)  thereunder. 

{If  the  offense  is  desertion,  it  may  be  stated  substan- 
tially as  follows:) 

That  the  said deserted  said  service  at , 

,  on ,  19 — ,  and  remained  absent  in  desertion 

until  he  was  apprehended  at , ,  on , 

19 — ,  by ,  and  was  thereupon  committed  to  the 

custody  of  the  respondent  as  commanding  officer  of  the 
post  of . 

The  said has  been  placed  in  confinement  {or 

"arrest," as  the  case  may  be),  and  formal  charges  have 
been  preferred  against  him  for  said  offense,  a  copy  of 


HABEAS  CORPUS — RETURN.       191 

which,  duly  certified  and  verified/  is  hereto  annexed; 
and  that  he  will  be  brought  to  trial  thereon  as  soon  as 
practicable  before  a  court-martial,  to  be  convened  by 

the   commanding  general  of  the  Department  of 

(or    "convened    by  Special  Orders,  No.   ,   dated 

Headquarters  Department  of  ,   19 — ,   a    copy    of 

which,  duly  certified  and  verified,^  is  hereto  an- 
nexed"). 

{If  the  party  held  is  a  military  convict,  the  following 
paragraph  should  he  substituted  for  the  preceding  par- 
agraph:) 

That  the  said was  duly  arraigned  for  said 

offense  before  a  general  court-martial,  convened  by 
Special  Orders,  No. ,  dated  Headquarters  Depart- 
ment of , ,  19 — ,  was  convicted  thereof  by 

said  court,  and  was  sentenced  to  be ,  which  sentence 

was  duly  approved  on  the day  of ,  19—,  by  the 

officer  ordering  the  court  (or  "  by  the  officer  command- 
ing said  Department  of for  the  time  being  ")  as  re- 
quired by  the  104th  Article  of  War.  A  copy  of  the  order 
promulgating  said  sentence,  duly  certified  and  verified,^ 
is  hereto  attached. 

In  obedience,  however,  to  the  said  writ  of  habeas  cor- 
pus the  respondent  herewith  produces  before  the  court 

the  body  of  the  said ,  respectfully  refers  to  the 

decisions  cited  in  the  annexed  brief,  and  for  the  reasons 

1  The  copy  of  the  charges  will  be  certified  by  the  post  adjutant  and  sworn 
to  before  an  officer  authorized  to  administer  oaths  for  military  administra- 
tion, in  the  following  form: 

I  hereby  certify  that  the  foregoing  is  a  full  and  true  copy  of  the  original 

charges  preferred  against ,  and  that  the  same  are  in  the  usual 

form  of  military  charges,  and  conform  to  the  rules  regulating  military  pro- 
cedure. 


I'uxl  Adjutant. 
Sworn  to  and  subscribed  before  iiic  this of ,  19 — . 


J II dcje- Advocate  of  Court-martial. 
{Or  '^  Trial  Officer  of  Summary  Court"). 
The  copy  of  the  order  convening  the  court,  or  publishing  the  senttmce, 
will  be  certified  and  verified  in  a  similar  manner. 


192      HABEAS  CORPUS — RETURN. 

set  forth  in  this  return  prays  this  honorable  court  to 
dismiss  the  said  writ. 

Major, U.  S.  Infantry. 

Dated , , 

,  19—. 


rorm  B. 
HABEAS  COKPUS  BY  STATE  COURT. 

RETURN   TO   WRIT, 

(3Iake  return  as  in  case  of  writ  by  a  United  States 
court,  except  as  to  last  paragraph,  for  which  substitute 
as  foUoivs:) 

And  said  respondent  further  makes  return  that  he  has 

not  produced  the  body  of  the  said  — ,  because  he 

holds  him  by  authority  of  the  United  States  as  above 
set  forth,  and  that  this  court  (or  ''  your  honor,"  as  the 
case  may  be)  is  without  jurisdiction  in  the  premises,  and 
he  respectfully  refers  to  the  decisions  of  the  Supreme 
Court  of  the  United  States  in  Ableman  v.  Booth,  21 
Howard,  506,  and  Tarble's  case,  13  Wallace,  397,  as  au- 
thority for  his  action,  and  prays  this  court  {or  "your 
honor  ")  to  dismiss  the  writ. 

» 
Major, U.  S.  Infantry. 

Dated ,  , 

,  19-. 


INSTRUCTIONS  AS  TO  RETURNS  TO  WRITS  OP 
HABEAS  CORPUS. 

The  following  instructions  is  regard  to  returns  under 
paragraphs  1008  and  1009,  Army  Regulations,  in  the 
cases  of  soldiers  who  have  committed  military  offenses 
and  are  held  for  trial  or  punishment  therefor,  and  of 
military  convicts,  are  for  the  information  and  guidance 
of  all  concerned : 

1.  The  return  under  paragraph  1009,  Army  Regula- 
tions, will  be  made  in  accordance  with  Form  A  (see 
page  190,  ante),  and  will  refer,  as  in  last  paragraph  of 


HABEAS   CORPUS — BRIEF.  193 

that  form,  to  the  brief  of  authorities  which  follows 
these  instructions,  and  a  copy  of  that  brief  will  be  an- 
nexed to  the  return.  Should  the  court  order  the  dis- 
charge of  the  party,  the  officer  making  the  return,  or 
counsel,  should  note  an  appeal  pending  instructions 
from  the  War  Department,  and  he  will  report  to  The 
Adjutant-General  of  the  Army  the  action  taken  by  the 
court  and  forward  a  copy  of  the  opinion  of  the  court  as 
soon  as  it  can  be  obtained. 

2.  The  return  under  paragraph  1008,  Army  Regula- 
tions, w-ill  be  made  in  accordance  with  Form  B  (see 
page  192,  ante) ,  but  a  copy  of  the  brief  of  authorities  is 
not  intended  to  be  attached  to  the  returns  to  writ  of 
habeas  corpus  issuing  from  a  State  court. 


BRIEF  TO  BE  FILED  WITH  RETURN  TO  A  WRIT 
OF  HABEAS  CORPUS  ISSUED  BY  UNITED 
STATES  COURT  IN  CASE  OF  A  SOLDIER  WHOSE 
DISCHARGE  IS  SOUGHT  UNDER  SECTION  1117, 
REVISED  STATUTES. 

If  a  minor  sixteen  years  old  or  over  claims  to  be 
twenty-one  years  of  age  or  over  and  enlists  without  the 
consent  required  by  section  1117,  Revised  Statutes,  the 
contract  of  enlistment  is  not  voidable  by  the  minor,  nor 
by  his  parents  or  guardian,  if  at  the  time  of  the  filing 
of  the  petition  the  soldier  is  held  in  pursuance  of  a  sen- 
tence of  a  court-martial,  or  any  step  has  been  taken 
with  a  view  to  bringing  him  before  such  court. 

1.  Contract  not  voidable  by  minor. 

(a)  When  soldier  is  not  in  confinement.  — United  States 
ex  rel.  Wagner  v.  Gibbon,  24  Federal  Reporter,  135.  In 
this  case  Wagner,  becoming  "tired  of  the  service," 
sought  his  discharge  from  the  Army  "solely  on  the 
ground  of  minority  at  the  time  of  enlistment."  This 
the  court  refused  to  grant,  holding  that  section  1117, 
Revised  Statutes,  "was  made  for  the  exclusive  benefit 


194        HABEAS  CORPUS — BRIEF. 

of  parents  and  guardians,"  and  that,  quoting  from  the 
syllabus — 

A  minor  over  sixteen  years  of  age,  who  at  the  time  of  his  enlistment 
makes  affidavit  that  he  is  twenty-one  years  of  age,  will  not,  on  his  own  ap- 
plication, be  released  on  hahens  corpus  on  the  ground  that  he  was  a  minor 
at  the  time  of  his  enlistment,  and  that  the  written  consent  of  his  gnardian 
was  not  obtained. 

(6)  When  soldier  is  in  confinement. — In  re  Morrissey, 
137  United  States,  157 ;  In  re  Grimley,  137  United  States, 
147;  In  re  Wall,  8  Federal  Reporter,  85;  In  re  Davison, 
21  Federal  Reporter,  618;  In  re  Zimmerman,  30  Federal 
Reporter,  176;  In  re  Hearn,  32  Federal  Reporter,  141; 
In  re  Spencer,  40  Federal  Reporter,  149;  Li  re  Lawler, 
40  Federal  Reporter,  233;  Solomon  v.  Davenport,  87 
Federal  Reporter,  318. 

In  the  Morrissey  case  the  Supreme  Court  of  the  United 
States  settles  this  beyond  question.  Morrissey,  a  minor 
of  seventeen  years  of  age,  enlisted  without  the  consent 
of  his  mother,  who  was  living.  He  deserted,  remained 
in  concealment  until  he  reached  his  majority,  and  then 
presented  himself  before  a  recruiting  officer  and  de- 
manded his  discharge  from  the  Army  on  the  ground 
that  he  was  a  minor  when  enlisted.  The  court  said 
that  the  provij^ion  of  section  1117,  Revised  Statutes — 

is  for  the  benefit  of  tbe  parent  or  guardian,  *  *  *  but  it  gives  no  privi- 
lege to  the  minor.  *  *  *  An  enlistment  is  not  a  contract  only,  but  effects 
a  change  of  status.  It  is  not,  therefore,  like  an  ordinary  contract,  voidable 
by  the  infant.  *  *  *  The  contract  of  enlistment  was  good  so  far  as  the 
petitioner  is  concerned.  He  was  not  only  dc  facto,  but  dejure,  a  soldier — 
amenable  to  military  jurisdiction. 

All  the  cases  cited  are  instructive  as  illustrative  of  the 
different  circumstances  under  which  this  principle  has 
been  declared. 

In  the  Lawler  case  the  deserter  was  arrested  and 
"held  as  such  awaiting  trial,  which  will  be  as  soon  as  a 
court-martial  can  be  convened  and  organized  for  that 
purpose." 

In  the  case  of  Solomon  v.  Davenport,  the  deserter  was 
held  by  a  sheriff  under  a  warrant  of  a  United  States 
commissioner. 


HABEAS    CORPUS — BRIEF.  195 

In  the  Spencer  case  the  court  said: 

The  authorities  which  have  beeu  read  to  me  seem  to  establish  very  con- 
clusively this  rule — that  the  enlistment  of  a  minor  is  voidable,  not  neces- 
sarily void;  and  that  he  does  really  become  by  such  enlistment,  although 
under  age,  engaged  in  the  service  of  the  United  States,  and  subject  to  the 
povyer  and  jurisdiction  of  the  military  authorities;  and,  such  being  the  case, 
the  court-martial  had  jurisdiction  to  arrest  and  try  him  for  the  charge  of 
desertion. 

2.  Contract  not  voidable  by  parents  or  guardians 

if  the  soldier  is  held  pursuant  to  a  sentence 

of  a  court-martial  or  any  step  has  been  taken 

with  a  view  to  bringing  him  before  such  court. 

In  re  Kaufman,  41  Federal  Reporter,  876;  In  re  Dohren- 

dorf,  et  aZ.,  40  Federal  Reporter,  148;  In  re  Cosenow,  37 

Federal  Reporter,  668;  In  re  Dowd,  90  Federal  Reporter, 

718;  In  re  Miller,  114  Federal  Reporter,  838;  U.  S.  us. 

Reaves,  126  Federal  Reporter,  127;  In  re  Lessard,  134 

Federal  Reporter,  305;  Ex  parte  Anderson,  16  Iowa, 

595;  McConologue's  case,  107  Massachusetts,  170;  In  re 

Carver,  142  Federal  Reporter,  623. 

In  the  Kaufman  case,  the  father  sought  the  discharge 
of  his  son,  who  was  held  by  the  military  authorities  and 
had  been  ordered  before  a  military  court  for  trial  as  a 
deserter.     Quoting  from  the  syllabus: 

A  minor  who  enlists  in  the  United  States  Army  upon  his  representation 
that  he  is  of  age,  and  receives  pay  and  clothing  and  afterwards  deserts  and 
is  arrested  as  a  deserter,  and  at  the  time  of  his  petition  is  held  by  the  United 
states  awaiting  trial  by  a  court-martial  for  the  crime  of  desertion,  will  not 
be  released  under  a  writ  of  huhens  corpus  upon  the  ground  that  being  a  minor 
his  enlistment  was  unlawful  and  contrary  to  the  Revised  Statutes  of  the 
United  States. 

In  the  Cosenow  case  the  minor  swore  that  he  was 
twenty-one  years  and  seven  months  old  at  the  time  of 
enlistment.  He  deserted,  and  at  the  time  of  the  filing 
of  the  petition  was  held  in  custody  awaiting  the  action 
of  the  reviewing  authority  on  the  proceedings  of  the 
court-martial.  His  father  sought  the  discharge  of  his 
son  on  the  ground  of  infancy  at  the  time  of  enlistment. 
The  court  refused  to  discharge  him,  holding  that  "an 
enlistment  contrary  to  law  is  not  void,  but  voidable;", 
that  the  court-martial  had  jurisdiction  of  the  offense, 


196       HABEAS  CORPUS — BRIEF. 

and  the  soldier  ' '  must  be  remanded  to  await  the  result 
of  his  trial." 

The  Dowd  case  arose  on  the  application  of  the  mother 
for  the  release  of  her  son,  who  was  held  under  sentence 
of  a  summary  court.  The  court  held,  quoting  from  the 
syllabus: 

The  enlistment  of  a  minor  in  the  Army  without  the  consent  of  his  parents 
or  guardian,  required  by  Kevised  Statutes,  section  1117,  is  not  void,  but 
voidable  only,  and  while  he  remains  in  the  service  under  such  enlistment 
the  minor  is  amenable  to  the  Articles  of  War,  and  can  not  be  remanded  to 
the  custody  of  his  parents  by  a  civil  court  on  a  writ  of  habeas  corpus  while 
undergoing  a  sentence  imposed  on  him  by  a  court-martial  for  a  violation  of 
such  articles. 

In  the  Anderson  case  it  appears  that  a  minor  enlisted 
without  his  father's  consent,  and  being  held  for  trial 
before  a  court-martial  for  desertion,  his  father  sought 
his  discharge  on  habeas  corpus.  The  court  refused  to 
discharge  the  soldier,  saying  "he  must  abide  by  the 
decision  of  the  latter  court  (court-martial)  before  the 
question  of  the  validity  of  his  enlistment  can  be  deter- 
mined in  the  civil  courts  on  habeas  corpus.'" 

In  McConologue's  case  the  court  said: 

A  minor's  contract  of  enlistment  is  indeed  voidable  only  and  not  void, 
and  if,  before  a  writ  of  habeas  corpus  is  sued  out  to  avoid  it,  he  is  arrested 
on  charges  of  desertion,  he  should  not  be  released  by  the  court  while 
proceedings  for  his  trial  by  the  military  authorities  are  pending. 

By  act  of  July  27,  1892,  "  fraudulent  enlistment,  and 
the  receipt  of  any  pay  or  allowance  thereunder,  is  .  .  . 
declared  a  military  offense  and  made  punishable  by 
court-martial  under  the  62d  Article  of  War."  A  minor 
who  procures  his  enlistment  by  representing  himself  to 
be  over  age  commits  this  offense,  and  the  statute  au- 
thorizes his  punishment  therefor.  In  general  it  may  be 
stated  that  where  a  minor  has  committed  a  military 
olf  ense  the  interests  of  the  public  in  the  administration 
of  justice  are  paramount  to  the  right  of  the  parent  and 
require  that  the  soldier  shall  abide  the  consequences  of 
his  offense  before  the  right  to  his  discharge  be  passed 
upon.  (Digest  Opin.  J.  A.  G.,  sees.  1258  and  1264,  and 
notes.) 


HABEAS    CORPUS— BRIEF.  197 

The  soldier  should  not  be  allowed  to  escape  punish- 
ment for  his  offense,  even  1  hough  his  par  n:s  assert 
their  right  to  his  services.  A  minor  in  civil  life  is  liable 
to  punishment  for  a  crime  or  misdemeanor,  even  though 
his  confinement  may  interfere  with  the  rights  of  his 
parents.  In  re  Miller  (114  Fed.  Rep.,  838),  it  was  held 
that  a  minor  16  years  old  or  over  '"enlisting  without 
the  consent  of  his  parents,  on  representation  that  he  is 
of  age,  becomes  a  soldier  amenable  to  military  jurisdic- 
tion for  military  offenses,  and  subject  to  release  from 
service  only  on  application  from  his  parents,  who  can 
not  prevent  his  court-mai'tial  for  past  military  offenses."" 
In  the  opinion  of  the  court  (page  842)  it  is  said: 

The  common  law,  unaided  by  statute,  fully  rocognized  the  parents'  rights 
to  the  custody  and  services  of  their  minor  child;  but  it  has  never  been  held 
that  they  could,  by  the  writ  of  habeas  corpus  or  otherwise,  obtain  his 
custody  and  his  immunity  when  he  was  held  by  an  officer  of  a  civil  court  of 
competent  jurisdiction  to  answer  a  charge  of  crime.  His  enlistment  having 
ma^le  the  prisoner  a  soldier  notwithstanding  his  minority,  he  is  answerable 
to  the  military  law  just  us  the  citizen  who  is  a  minor  is  answerahle  to  the  civil 
laiv.     TJte  parents  can  not  prevent  the  law's  enforcement  in  either  case.     *     *     * 

These  views  were  cited  with  approval  in  U.  S.  v. 
Reaves  (126  Fed.  Rep.,  127),  where,  upon  full  consid- 
eration of  the  authorities,  the  circuit  court  of  appeals 
remanded  Reaves,  a  minor  who  had  deserted  from  the 
Navy,  to  the  custody  of  the  naval  authorities  as  repre- 
sented by  the  chief  of  police  who  had  apprehended  him. 

See  also  in  re  Carver  (142  Fed.  Rep.,  623),  where  the 
case  of  U.  S.  v.  Reaves,  supra,  was  followed,  the 
decision  of  the  court,  as  stated  in  the  syllabus,  being  as 
follows: 

"A  minor  under  the  age  of  18  years,  who  unlawfully 
enlisted  in  the  Army  without  the  consent  of  his  father, 
can  not  be  discharged  from  the  service  on  a  writ  of 
habeas  corpus  sued  out  by  his  father  so  long  as  he  is 
under  arrest  for  desertion,  nor  until  he  has  been  dis- 
charged from  such  custody  or  has  served  the  sentence 
imposed  on  him  by  the  military  tribunal." 


INDEX 


Abatement  of  punishment :  Page. 

for  good  conduct  in  confinement 72 

Abatement : 

plea  in o3 

Absence : 

of  member  from  meeting  of  court 22.  144 

»S'ee  Department  commander. 

Absence  without  leave : 

effect  of  conviction  of,  on  reward  for  aitprehensiou  r»0 

effect  on  cost  of  transportation 50 

finding  of,  under  charge  of  desertion 46 

from  camp,  1  mile 109 

from  duty  as  company  or  hospital  cook 50 

from  fatigue,  extra,  or  special  duty 51 

from  parade,  etc.,  forms  for  charges 136 

from  parade,  etc.,  limit  of  punishment 54 

from  parade,  etc.,  offense  of 109 

from  troop,  etc.,  form  for  charge 136 

from  troop,  etc.,  limit  of  punishment 53 

from  troop,  etc.,  offense  of 109 

Abuse  of  authority: 

by  noncommissioned  officer,  limit  of  punishm(>nt 56 

Accounts : 

of  reporter,  form  for 186 

of  witness,  forms  for 177,  182 

of  witness,  rules  governing 179-185 

of  witness,  to  deposition 41,  178 

Accouterments : 

accountability   for 104 

selling,  losing,  etc.,  form  for  charge 134 

selling,  losing,  etc.,  limits  of  punishment 53 

selling,  losing,  etc.,  offense  of 105 

Accused : 

arraignment  of 32,  119 

challenge  by,  how  allowable 28 

challenge  by,  how  recorded 149,  150 

consent  of,  to  trial  by  summary  court 19,  82 

entitled  to  counsel  before  general  court 25 

entitled  to  have  witnesses  summoned 34 

entitled  to  testify 45 

(199) 


200  INDEX. 

Accused — Continued.  Page. 

judge-advocate,  how  far  counsel 23 

may  submit  statement,  etc 46 

stands  mute 3.3 

to  be  advised  of  liis  rights 23 

uniform  of,  before  court 21 

will  not  appear  in  irons 21 

Accuser : 

can  not  convene  general  court 13 

can  act  as  summary  court 78 

challenge  of  member  on  ground  of  being 29 

should  not  act  as  judge-advocate 29 

Acquittal : 

effect  of,  on  reward  for  apprehension 50 

finding  in  case  of  virtual 47 

form  for  recording 156 

Action  on  proceedings.     See  Proceedings. 

Additional  charges: 

can  not  be  introduced  after  arraignment,  etc 20 

Adjournment : 

daily,  signed  by  judge-advocate 24 

final,  signed  by  president  and  judge-advocate 24 

form  for  recording 153 

Advising  desertion: 

offense  of 111 

Alarms : 

false,  offense  of  occasioning 110 

Ammunition: 

offense  of  purchasing,  from  soldier,  etc 115 

offense  of  wasting,  selling,  etc 105 

Appeal : 

from  regimental  to  general  court lOS 

Appointing  authority.     See  Convenimi  author  it  if. 

Arms : 

accountability   for 104 

offense  of  casting  away 110 

offense  of  making  false  return  of 103 

offense  of  selling,  losing,  etc 105 

offense  of  selling,  losing,  etc.,  limits  of  punishment  53 

Arraignment : 

accused  and  judge-advocate  stand •"»2 

accused  not  to  be  in  irons  at 21 

accused  stands  mute  at,  action  by  court 33 

additional  charges  not  introduc(»d  after 20 

form  for  i*ecording 150 

procedure  for 24,  32 


INDEX.  201 


Arrest :  Page. 

applications  of  officers  in 7 

breach  of,  by  officers 116 

general  provisions  regarding 9 

of  deserters,  reward  for 50 

of  officers 6,  116 

of  soldiers 8 

omission  of,  as  affecting  jurisdiction 6,   8 

protracted,  a  ground  for  mitigation 69 

Arson : 

offense  of,  in  time  of  war 113 

Articles  of  war: 

armies  of  United  States  governed  by 102 

officers  sliall  subscribe 102 

read  once  in  six  months  to  troops 127 

read  to  recruits 102 

Assault  with  intent  to  kill: 

form  for  charge 143 

limit  of  punishment 55 

Assembling  of  court : 

procedure  on 21 

Attachment    of   witness.     See    Witness    and    Warrant   of 
attachment. 

Attendance  of  witness:   See  Witness. 

Authentication  of  proceeding.     See  Proceedings. 

Authority : 

abuse  of,  by  noncommissioned  officers 56 

Autrefois  acquit: 

plea  of 33 

Ball  and  chain: 

as  punishment 49 

punishment  by,  in  extreme  cases  only 50 

report  of  use  to  department  commander 70 

Blanks : 

accounts  for  civilian  witnesses,  where  obtained  —       177 
summons,  subpoenas,  etc 175 

Branding  of  soldiers: 

forbidden 122 

Breach  of  arrest: 

by  officers 116 

Bread  and  water  diet: 

confinement  on,  as  punishment 49 

Bribes : 

officer  taking 103 


202  INDEX. 

Burglary :  Page. 

offense  of,  in  time  of  war 113 

under  62d  Article,  form  for  charge 143 

under  62d  Article,  limit  of  punishment 55 

Cadets.     See  Military  Academy. 

Camp: 

introducing  liquor  into,  limit  of  punishment : 56 

lying  out  of,  without  leave  ________i._\__ 108,  109 

retainers  of,  jurisdiction  over 15 

soldiers  1  mile  from,  without  leave  i-_ 109 

violence  to  persons  bringing  provisions  to 112,  113 

Candidate  for  promotiou: 

punishment  of . 49 

triable  by  general  court  only 15 

Capital  crime: 

desertion  in  time  of  peace  not  a 42 

meaning  of : 42 

Captured  stores: 

disposition  of 104 

Cashiering : 

meaning  of 104 

Certificates : 

penalty  for  signing  false 105 

Challenge  (of  memher  of  court)  : 

court  determines  validity  of 28 

grounds  for 28,  29 

in  absence  of,  member  how  excused 29 

judge-advocate  not  challengeable 29 

record  in  case  of 149,  150 

summary  court  not  subject  to 28 

Challenge   (to  fight  duel)  : 

duty  to  refuse 107 

sending,  accepting,  etc 107 

upbraiding  for  refusing 107 

Chaplains : 

not  detailed  as  members  of  courts 11 

Character : 

evidence  of 33 

Charges : 

accompanied  by  what 19,  20,  80 

act  charged  under  two  or  more  forms 19 

additional 20 

consideration  of,  by  post  commander 19 

correction  of,  by  judge-advocate 23 


INDEX.  203 

Charges — Continued.  Page. 

delay  in  trial  bj-  sumninry  court  on 70 

forms  for i:>4 

instructions  for  drawins^ lG-2(t 

investigation  of 19 

joint,  when 17 

prisoners  witliout  written,  when  released 9,   10 

requisites  of 10 

service  of,  upon  officer  arrested 7,   8 

specifications,  how  drawn 17,  18 

specifications,  not  in  alternative  __- 18,  19 

striking  out,  withdrawing,  etc 20 

to  show  consent  to  trial  hy  summary  court 19,  82 

to  whom  submitted 19 

when  and  )iy  whom  sul>mitted 9 

Civil  court : 

can  not  review  proceedings  of  military 1:5 

military,  ordinarily,  gives  precedence  to 14 

previous  convictions  l)y,  inadmissil)le 48 

Civil  crime: 

act  as  being  both  military  offense  and 14 

Civil  magistrate: 

delivery  of  accused  officer  or  soldier  to llfi 

Clemency : 

certain  applications  for 67 

recommendation  to 65 

Clothing: 

form  for  charge  for  selling 134 

limit  of  punishment  for  selling 53 

limit  of  punishment  for  losing  or  spoiling 53 

offense  of  selling,  losing,  etc  _-l 19,  105 

Closed  session: 

judge-advocate  excluded 25 

Company  commander: 

arrest  or  confinement  of  soldiers  reported  to 9 

copy  of  summary  court  record  furnished  to 83 

Commanding  officer: 

disrespect  to,  limit  of  punishment 53 

disrespect  to,  offense  of 106 

instructions  to,  regarding  summary  courts 82 

may  authorize  departure  of  certain  witnesses 42 

must  investigate  charges 19 

power  to  order  court  of  inquiry 125 

refers  or  forwards  charges 19 

report  of  prisoners  to 9 


204  INDEX. 

Command :  Page. 

suspension  from,  as  punishment 49 

wlien  different  corps  join 126 

Commands : 

officers  to  keep  good  order  in 112 

Commutation  of  punishment: 

power  of  reviewing  autliority 67 

Company  cook: 

limit  of  punisliment  for  absence  from  duty  as .56 

limit  of  punishment  for  drunkenness  on  duty  as 54 

Composition  of  courts-martial.     See  Couits-martial. 

Conduct  to  the  prejudice,  etc.: 

forms  for  charges 140-144 

instruction  regarding  charges 17 

limits  of  punishment 55-57 

Conduct  unl)ecoming,  etc.: 

forms  for  charges 140 

instructions  regarding  charges  of 17 

Confinement  before  trial: 

enlisted  men  in,  how  designated 8 

general  provisions  regarding 9 

long,  a  ground  for  mitigation 70 

of  officers 7 

of  soldiers 8 

report  of,  to  soldier's  company  commander 9 

Confinement  after  trial: 

abatement  allowed 7o 

enlisted  men  in,  how  designated 71 

forms  for  sentence  to 170 

on  bread  and  water  diet 49,  60 

personal  effects  of  escaped  prisoners 71 

prisoners  forwarded  to  place  of 71 

prisoners  put  in  irons,  report  made 70 

second  sentence  to,  begins  when 73 

sentence  to,  begins  when 72 

sentence,  expiration  of,  to  be  verified : 73 

separation  of  prisoners  in 70 

solitary,  duration  of 60 

without  hard  labor  not  to  be  imposed 49 

Constitution  of  courts-martial.     See  Conrls-martioL 

Contempt : 

courts-martial  may  punish  for 120 

Continuance.     See  Postponement. 

Contract  surgeon,  etc.: 

authority  to  sign  charges 20 

disobedience  of  orders  of 106,  135 

ineligible  as  member  of  court 11 


INDEX.  '  205 


Convening  authority:  Page. 

control  of,  over  court lo 

decision  of,  as  to  numl)er  of  members 12 

effect  of  absence  on  appointing  power 13 

of  garrison  court 83 

of  general  court 12,  13 

of  regimental  court 8") 

of  summary  court 78 

prosecutor  can  not  convene  general  courts 13 

report  to,  when  court  is  below  minimum 12 

the  President  as 12 

the  Superintendent,  T^.  S.  Military  Academy,  as  __  13 

Conyening  order: 

for  garrison  court 162 

for  general  court 147 

for  regimental  court ^ 165 

Convictions.     See   Previous  convictions. 

Correction  of  proceedings.     See  Revifiion  of  record. 

Correspondence : 

with  the  Judge-Advocate  General 76 

with  the  enemy 110 

Counsel  for  accused : 

arguments  of,  oral  or  written 26 

before  inferior  courts 26 

by  whom  detailed 25 

duties  of 26 

introduction  of,  before  court 149 

judge-advocate,  how  far 23 

questions  of,  oral  or  written 26 

Courts-martial : 

all  troops  subject  to  trial  by 14 

assembling  of 21 

authority  over  charges 20 

can  not  excuse  member 29 

can  not  order  nolle  prosequi 20 

civil  courts  can  not  review  proceedings  of 13 

classification  of 11,  12 

composition  of 11 

control  of  convening  authority  over 13 

hours  of  session  repealed 121 

inferior 11,  12 

jurisdiction  of,  as  affected  by  act  of  accused 15 

jurisdiction  of,  derived  from  acts  of  Congress 13 

jurisdiction  of,  exclusive  over  military  offenses 14 

jurisdiction  of,  how  extended  in  time  of  war 15 

jurisdiction  of,  not  affected  by  territoriality 14 


206  INDEX. 


Courts-martial — Continued.  Pa^'o. 

jurisdiction    of,    over   acts   botli    civil    crimes   and 

military  offenses 14 

jurisdiction  of,  over  offenses 14 

jurisdiction  of,  over  persons 14 

jurisdiction  of,  statute  of  limitation  as  affecting 34 

jurisdiction  of,  when  ended 14 

may  punish  for  contempt 120 

object  of,  as  military  tribunal 6 

organization  of 20 

Garrison  courts-martial — 

appointed  in  what  commands 83 

appointed  when 84 

composition,  etc.,  of 8o 

counsel  before 26 

disposition  of  proceedings  of 76 

form  for  order  and  record 162 

jurisdiction   of 8."> 

limit  of  punishing  power 84,  119 

testimony,  etc.,  will  not  be  recorded ' 84,  164 

General  courts-martial — 

appeal  from  regimental  court  to 108 

closed  session  of 25 

composition  of 11 

constituted  by  whom 12.  13 

counsel.     See  Counsel  for  accused. 

disposition  of  proceedings  of TH 

form  for  order  and  record 147 

jurisdiction  of 15 

procedure  of 21 

record  of,  copy  furnished  accused 76,  125 

record  of  proceedings 63 

revision  of  record 65 

Regimental  courts-martial — 

composition,  etc.,  of 85 

counsel  before 26 

disposition  of  proceedings  of 76 

form  for  order  and  record 165 

jurisdiction  of 85 

limit  of  punishing  power 84.  11J> 

testimony  will  not  bo  recorded 84 

under  30th  Article  of  War 108 

Summary  courts — 

accuser  can  act  as 78 

act  establishing 120 

appointment  of 78 


INDEX.                 •  207 

Courts-martial — Continued.  Pago. 
Nummary  courts — Continued. 

composition,  etc,  of 78 

consent  to  trial  by 82 

copies  of  record,  furnislied  company  commanders 83 

counsel  before 26 

delay  in  trial  by 79 

discretion  as  to  trial  by 7!i 

general  instructions  regarding 82 

hours  of  session 82 

jurisdiction   of 79 

limit  of  punishing  power 79,  82,  119 

may  be  held  on  Sunday  in  emergency 82,  8:> 

monthly  report  of  cases  tried,  form  for 161 

names  of  officers  who  act  as,  reported 83 

not  challengeable 28 

power  of 79 

previous  convictions  considered  by 80 

procedure  of 80 

record,  form  for 159 

report  of  cases  tried  by,  to  be  made  monthly 19,  76 

reviewing  authority  of 81 

Courts  of  inquiry: 

authentication  of  proceedings  of 88,  126 

composition  of 87,  125 

constituted  by  whom 86,  125 

form  of  convening  order 87 

how  ordered 125 

jurisdiction  of 86 

oath  of  members  and  recorder 87,  125 

object  of,  as  a  military  tribunal 6 

opinion  of,  when  given 87,  120 

organization  of 87 

procedure  of 87 

proceedings,  carbon  copy,  disposition  of 27 

record  of,  as  evidence 126 

record  of  proceedings 88 

reporter  for,  employment  of 87 

witnesses  before 87,  125 

Cowardice : 

offense  of 110 

sentence  for,  how  published 1.22 

Crime : 

act  as  being  both  military  offense  and  civil 14 

capital,  desertion  in  time  of  peace  not  a 41 

capital,  offender  delivered  to  civil  magistrate 113 

during  rebellion,  etc 113 


208  INDEX. 

Crime — C'ontinuod.  Page. 

officers  accused  of,  subject  to  arrest 110 

of  fraud  against  the  United  States 114,  115 

soldiers  accused  of 116 

to  the  prejudice,  etc li;>,  IIG 

Criminals : 

enlistment  of,  prohibited 102,  lO."] 

Customs  of  war  or  service: 

as  affecting  punishment 00 

as  part  of  unwritten  military  law 0 

Days : 

meaning  of  word  in  sentence 72 

Death,  sentence  of: 

confirmation  of 12.*> 

suspension  of 07,  124 

vote  upon 01 

Deceased  soldiers: 

disposition  of  effects  of 127 

Defects  in  proceedings.     See  Revision  of  record. 

Defense : 

how  far  assisted  by  judge-advocate 2r> 

Delay : 

in  trial  by  summary  court 70 

when  and  by  whom  granted 'M 

Dental  surgeon.      See  Contract  surgeon,  etc. 

Department  commander: 

as  accuser  or  prosecutor ir; 

authorized  to  convene  courts l.'i 

authorized  to  review  proceedings 0,1,  00 

can    not    delegate    his    function    as    reviewing   au- 
thority    06 

charges  forwarded  to 19 

effect  of  absence  of,  on  appointing  power 13 

may  permit  trial  of  n.  c.  o.  by  inferior  courts 16 

report  of  irons  on  prisoner  to 70 

Deposition : 

duty  of  officer  ordered  to  obtain 40 

fees  of  civil  officer  taking 41,  45 

fees  of  witness  giving  deposition 41 

■    form  for  _ 177 

may  be  taken  before  court  assembles 40 

oath  to,  by  whom  administered 40 

pay  accounts  of  witness  giving 41 

procedure  to  obtain 40 

submission  to  court 40 


INDEX.  209 


Deposition — Continued.  Pago, 

taken  by  consent  where  witness  resides  in  State  _  39,  175 

when  admissible 39,  121,  175 

when  not  admissible 39,  41 

Deprivation  of  privileges: 

of  "  candidate  for  promotion  " 49 

Deserter : 

enlistment  of,  prohibited 102 

from  Navy  or  Marine  Corps 102 

harboring,  offense  of 111 

surgeon's  report  to  accompany  charges  against 20,  145 

to  serve  full  term 111 

limits  of  punishment  of 52 

Desertion : 

after  tendering  resignation 111 

by  enlistment  in  another  regiment 111 

evidence  of,  after  plea  of  guilty 32,  33 

form  for  charge  of 138 

in  time  of  peace,  not  a  capital  offense 41,  110 

judge-advocate's  duty 24 

limits  of  punishment 52 

offense  of 110,  111 

offense  of  advising  or  persuading 111 

previous  convictions  of 52,  59 

statute  of  limitation  for 34,  123 

Discharge,  dislionoral)lo : 

form  for  sentence  of 171 

of  an  officer  for  cowardice  or  fraud 122 

of  post  noncommissioned  staff  and  hospital  steward  49 

on  account  of  conviction  of  two  or  more  offenses  —  59 

on  account  of  previous  convictions 59 

postponement  of  date  fixed  by  sentence 69 

Discharge  from  service: 

how  made 103 

Dismissal : 

by  court-martial,  appointed  by  division  or  brigade 

commander 124 

for  cowardice,  etc.,  where  published 122 

in  time  of  peace,  sentence  confirmed 123 

of  general  officers 124 

suspension  of  sentence  of 67,  124 

Disobedience  of  orders: 

involving  defiance  of  noncommissioned  officer 56 

of  a  contract  surgeon,  etc 135 

of  a  noncommissioned  officer,  form  for  charge 141 

50963 14 


210  INDEX. 


Disobedience  of  orders — Continued.  Page, 

of   a   noncommissioned   officer,    offense    under   62d 

Article 13r> 

of  a  sentinel,  limit  of  punishment 57 

of  an  officer,  etc.,  quelling  fray,  limit  of  punishment  5:> 

of  an  officer,  etc.,  quelling  fray,  offense  of 106 

of  an  officer,  form  for  charge l.'Jf) 

of  an  officer,  offense  of 10(5 

simple  neglect  of  standing  order i;ir» 

Disorderly  coiuliict  in  quarters: 

limit  of  punishment 50 

Disorders  and  neglects: 

offenses  under  62d  Article 115 

Disposition  of  records: 

of  general  courts 75 

of  inferior  courts ^ 70 

Disrespect : 

regarding  President,  etc.,  offense  of 100 

to  commanding  officer,  limit  of  punishment 5.'5 

to  commanding  officer,  offense  of 100 

to  sentinel,  limit  of  punishment 57 

Divine  service : 

irreverent  behavior  at ^ 111 

officers,  etc.,  recommended  to  attend 111 

Double  amenability: 

in  case  of  disorder  near  post 50 

to  civil  and  military  jurisdictions 14 

Drunkenness : 

at  guard  mounting 17 

at  post  or  in  quarters,  limit  of  punishment 56 

on  duty,  form  for  charge l;'»7 

on  duty,  limits  of  punishment 54 

on  duty,  offense  under  o8th  Article 17,  10".) 

Drunkenness  and  disorderly  conduct : 

form  for  Charge 141 

limits  of  punishment 50 

near  post,  causing  conviction  by  civil  authorities __  56 

Duel: 

challenge  to  light 107 

sending,  accepting  challenge,  etc 107 

upbraiding  for  refusing  challenge 107 

Duty : 

conniving  at  hiring 10?) 

hiring 10*» 


INDEX.  211 

Effects :  Page. 

of  deceased  officers  and  soldiers 120,  127 

of  escaped  prisoners 71 

Embezzlement : 

of  Ignited  States  property 55,  115 

offense  under  62d  Article,  limit  of  punishment 55 

specifications  for,  to  state  value  of  property 55 

Enemy : 

correspondence  with 110 

misbehavior  before 110 

relieving,  harboring,  etc 110 

trading  with 127 

Enlistment : 

fraudulent,  definition  of 14 

fraudulent,  forms  for  charges 142 

fraudulent,  limits  of  punishment 56 

fraudulent,  offense  under  62d  Article 116 

oath  of 102 

of  certain  classes  prohibited 102 

unlawful,  penalty  for  making 102 

Escape  of  prisoner: 

disposal  of  effects  of  prisoner 71 

effect  on  jurisdiction  of  court 15 

form  for  charge  for  suffering 141 

limit  for  suffering 56 

Evidence : 

common-law  rules  of,  ordinarily  followed 45 

proceedings  of  court  of  inquiry  as 126 

Examination  of  witness.     See  Witness. 

Experts : 

employment  and  pay  of 43 

Exposure  of  person: 

limit  of  punishment 57 

False  alarms : 

penalty  for  creating 110 

False  certificate: 

penalty  for  signing 105 

False  muster: 

penalty  for  making 103,  105 

penalty  for  signing,  etc.,  roll  containing 105 

False  report: 

by  noncommissioned  officer,  limit  of  punishment  —  56 

False  return: 

penalty  for  making 103 


212  INDEX. 

False  swearing:  Page. 

distinguished  from  perjury 144 

limit  of  punishment 55 

Fees  of  witness.    See  Witness. 

Finding: 

in  case  of  virtual  acquittal 47 

of  guilty  of  lesser  kindred  offense 46 

of  guilty  of  part  of  specification 46 

of  guilty  under  general  instead  of  specific  article 47 

reviewing  authority  can  not  change 47 

Fine: 

as  a  punishment 49 

See  Forfeiture  of  pay. 

Flogging: 

prohibited 49,  122 

Forcing  a  safeguard: 

offense  of 11,3 

Forfeiture  of  pay: 

as  a  punishment 49 

can  be  made  only  in  favor  of  United  States 50 

for  irreverent  behavior 111,  112 

for  profanity 112 

forms  for  sentences  to 171 

of  amount  paid  for  apprehension 50 

remission  of  sentence 69 

Forgery : 

under  60th  Article,  limit  of  punishment 55 

under  62d  Article,  limit  of  punishment 55 

Former  trial: 

plea  of 33 

Forms : 

for  accounts  of  civilian  witnesses 177-185 

for  accounts  of  reporters 186 

for  charges 134 

for  interrogatories  and  deposition 175,  176 

for  monthly  report  of  summary  court  cases 161 

for  record  of  summary  court 159 

for  record  of  garrison  court 162 

for  record  of  general  court 146 

for  record  of  regimental  court 165 

for  return  to  habeas  corpus  of  State  court 192 

for  return  to  habeas  corpus  of  United  States  court  190 

for  revision  of  record,  general  court 158 

for  sentences 170 

for  general  order  publisliing  procei>tlings 188 


INDEX.  213 

Forms — Continued.  Page. 

for  statement  of  service 145 

for  subpoena  duces  tecum 172 

for  subpoena  for  civilian  witness 172 

for  subpoena  for  deposition 173 

for  summons  for  military  witness 171 

for  surgeon's  report  on  alleged  deserter 145 

for  warrant  of  attachment 174 

Fort  Leavenworth,  Kans. : 

United  States  military  prison  and  branches 67 

penitentiary  at,  designation  of 68 

Fraud : 

administration  of  oaths  in  investigation  of 31,  132 

offenses  of,  under  60th  Article 114 

oflacer  dismissed  for 122 

Fraudulent  enlistment.     See  Enlistment. 

Frays : 

power  to  quell 106 

refusing  to  obey  officer,  etc.,  quelling,  limit  of  pun- 
ishment     53 

Gambling : 

encouragement  of,  by  noncommissioned  officer,  limit 

of  punishment 56 

Garrison  court-martial.     See  Courts-martial. 

Garrison  prisoners: 

who  designated  as 70 

General  and  special  orders: 

as  part  of  written  military  law 6 

publishing  proceedings '_       .  60 

General  court-martial.      See  Courts-marl Uil. 

General  officers: 

power  of,  to  convene  courts 13 

sentences  regarding 124 

Good  conduct  in  confinement: 

abatement  for 72 

Good  order: 

officers  to  keep,  in  their  commands 112 

Grievances : 

of  officers 108 

of  soldiers 108 

redress  for 108 

Guard : 

drunkenness  on,  form  for  charge 137 

drunkenness  on,  limit  of  punishment . 54 

drunkenness  on,  offense  of 109 


214  INDEX. 

(Juard — Continued.  Pa^e. 

for  nrisoners  conveyed  to  place  of  confinement 71 

member  of,  drinking  witli  prisoner,  limit  of  punish- 
ment    ilT 

prisoners  delivered  to,  charges  against J) 

prisoners  under  charge  of,  when  released 0 

quitting,  form  for  charge IMT 

quitting,  limit  of  punishment ;")."» 

quitting,   offense  of 110 

(juard  duty: 

as  a  punishment,  forbidden 50 

Guard  mounting: 

drunk  at,  limit  of  punishment ,54 

Habeas  corpus: 

forms  for  return  to  writ  of 190-11);! 

instructions  as  to  returns :!G,  To,  192 

minority  as  a  ground  for,  brief 19:'. 

officers  served  with,  action  required oG,  7o 

writ  issued  by  State  court ;;T,  74,  192 

writ  issued  by  United  States  court ^6,  75,  190 

writ  issued  in  IMiilippines,  etc 74 

Harboring : 

deserter 111 

enemy 110 

Hard  labor: 

as  a  punishment 49 

forms  for  sentences  to 171 

power  of  inferior  court  to  award 119 

Hiring  duty.     See  Duty. 

Horse : 

limit  of  punishment  for  losing  or  spoiling 5.'i 

limit  of  punishment  for  selling 5.'> 

ofEense  of  selling,  etc 105 

Hospital  cook: 

limit  of  punishment  for  absence  from  duty  as 50 

Hospital  sergeants,  1st  class: 

arrest  of 8 

confinement  of 8 

jurisdiction  over 15 

may  be  discharged,  but  not  reduced 4!t 

punishment  of 49 

Hours  of  session: 

article   prescril)ing,    repealed    121 

not  to  interfere  with  routine  duties 21 

of  summary  court S2 

record  of 147 


INDEX.  215 

Indeceut  exposure:  Page. 

limit  of  punishment 57 

Inferior  courts-martial : 

courts  so  designated 12 

disposition  of  records  of 76,  77 

instructions  regarding 12 

punishing  power 119 

Inquiry,  Courts  of.     See  Courts  of  inquinj. 

Insane  or  intoxicated  person: 

enlistment  of 102 

Insubordination : 

toward   noncommissioned   officer,   limit   of   punish- 
ment   56 

Interpreter : 

employed  by  order  of  court 28 

oath  of 24,  31 

pay  of 28 

record  relating  to 150 

Interrogatories  and  deposition.     See  Deposition. 

Introducing  liquor  into  camp,  etc.: 

limit  of  punishment 56 

Irons  on  prisoner: 

as  a  punishment 49,  50 

removed   on  arraignment 21 

reported  to  department  commander 70 

Irreverent  behavior: 

at  divine  service 111 

Joint  charges: 

when  allowed 17 

Judge-Adrocate-General : 

applications  to,  for  copies  of  records 76 

correspondence  with 76 

proceedings  in  certain  cases  forwarded  direct  to 76 

revises  and  preserves  records  of  general  courts 75 

Judge-advocate  of  court-martial: 

appointed  by  whom 20,  118 

assistance  in  preparing  record 26 

authorized  to  administer  certain  oaths 24,  29,  121 

challenge  of  member  of  court-martial  by 28 

correction  of  chai'ges  by 23 

death  or  disability  of 24,  63 

duties  of 23 

new  judge-advocate,  i-ecord  regarding 63 

not  challengeable 29 

oath  of 30 


16  INDEX. 


Judge-advocate  of  court-martial — Continued.  Page. 

subpoenas  by,  how  sent 35 

subscribes  daily  record,  etc 24 

warrant  of  attachment  Issued  by 36 

withdraws  when  court  is  closed 25 

witnesses  summoned  by 34 

Judge-adrocate  of  department: 

authorized  to  administer  certain  oatl.s 31.  121 

custodian  of  records  of  inferior  courts 77 

Jurisdiction  of  courts-martial.     See  Courts-martial. 

Larceny : 

by  soldier  from  civilian 18 

forms  for  charges  of 139,  143 

offense  of,  in  time  of  war 113 

offense  under  62d  Article,  limits  of  punishment 55 

specifications  for,  to  state  value  of  property 55 

Law  of  liostile  occupation: 

definition  of 5 

Laws  of  the  land : 

municipal  ordinances,  part  of 113 

Leaving  post: 

form  for  charge 137 

offense  of 109 

Lewd  exposure: 

limit  of  punishment 57 

Limitation,  Statute  of: 

advantage  of,  how  taken 34 

effect  of,  on  jurisdiction 34 

Limits  of  punishment.  See  Maximum  limits  of  punishment. 
Liquor : 

introducing  into  camp,  etc.,  limit  of  punishment  —  5G 

Log: 

punishment  by  carrying  heavy,  prohibited 50 

Losing  or  spoiling: 

accouterments  or  clotliing,   througli  neglect,  limit 

of  punishment 53 

accouterments  or  clothing,  through  neglect,  offense 

of 105 

horse  or  arms,   through   neglect,   limit  of  punish- 
ment           53 

horse  or  arms,  through  neglect,  offense  of 105 

Loss  of  rank : 

as  a  punishment 49 

Lying  out  of  quarters: 

offense  of 10H 


INDEX.  217 

Manslaughter:  Page. 

ofiEense  of,  in  time  of  war llo 

under  62d  Article,  limit  of  punishment 55 

March : 

different  corps,  etc.,  on  the 126 

Marine  Corps: 

deserter  from 34 

officers  of,  as  members  of  courts 11 

Marking : 

as  a  punishment,  forbidden 49,  122 

Martial  law: 

as  a  domestic  fact,  definition  of 5 

as  applied  to  the  Army,  definition  of 5 

Maximum  limit  of  punishment : 

by  whom  prescribed 51 

effect  of  previous  convictions  on 58,  59 

for  desertion 52 

for  offenses  in  general 53 

of  noncommissioned  officer 59 

of  soldier  convicted  of  several  offenses 59 

offenses  not  mentioned 60 

Mayhem : 

offense  of,  in  time  of  war : 113 

Medical  officer: 

arrest   of 7 

report  of,  in  case  of  deserter 20 

report  of,  form  for 145 

Members  of  courts-martial: 

absent,  communicate  cause  to  judge-advocate 22 

absent  during  evidence,  not  to  sit 29 

assembling  of 21 

behavior  of 22 

court  can  not  excuse  from  sitting 29 

duty  of  judge-advocate  to  ascertain  cause  of  ab- 
sence of  duty 148 

liable  for  other  duty 22 

named  in  order  of  rank 22 

new  member 63 

oath  of 24,  30 

questions  by,  how  recorded 152 

quorum  for  general  court 12 

seating  of 22 

uniform  of 21 

votes  of,  how  given 22 

who  are  eligible  as 11 

who  believe  themselves  disqualified 29 


218  INDEX. 

Member  of  ^uard:  I'age. 

drinking  liquor  with  prisoner,  limit  of  punishment  57 

Military  Academy: 

cadets  not  triable  by  inferior  courts 15 

superintendent  may  convene  courts  for  cadets 13 

Military  commission: 

object  of  as  military  tribunal 6 

reporter  for 26,  187 

Military  convicts: 

disobedience  of  orders  by 106,  135 

sentence,  examination  of 73 

jurisdiction  over 3  5,  61,  79,  84,  130 

punishment  for  escape 57 

who  designated  as 70 

Military  discipline: 

conduct  to  prejudice  of,  forms  for  charges 141 

conduct  to  prejudice  of,  how  charged 17 

conduct  to  prejudice  of,  limits  of  punishment 55-57 

crimes,  disorders,  and  neglects  to  the  prejudice  of  115 

Military  government : 

definition  of 5 

Military  jurisdiction : 

how  subdivided 5 

source  of 6 

Military  law: 

definition  of 5 

sources  of 5,   6 

Military  tribunals: 

classification  of 6 

Militia : 

not  triable  by  officers  of  Regular  Army 11 

officers  as  members  of  courts 11 

officers  in  United  States  service,  rank  of 126 

Minimum: 

report  if  court  is  below 12 

Minors : 

offense  of  enlisting,  without  consent  of  parents  __  102 
See  Habeas  corpus. 

Misbehavior  before  enemy: 

offense  of llo 

Misconduct  in  time  of  war: 

abandoning  post,  etc 110 

casting  away  arms,  etc 110 

chnnging  parole  or  watchword 110 


INDEX.  219 

Misconduct  in  time  of  Tvar — Continued.  Page. 

correspondence  with  enemy 110 

cowardice 110.   122 

disclosing  parole  or  watchword,  etc 110 

false  alarms 110 

forcing  safeguard 113 

intelligence  to  enemj- 110 

misbehavior  before  enemy 110 

pillage 110 

quitting  colors 110 

relieving  or  harboring  enemy 110 

various  crimes 113 

Mitigation  of  sentence: 

of  garrison  or  regimental  court 66,  67 

of  general  court 66,  67 

of  prisoner  long  confined  before  trial 69 

of  summary  court 81 

Motion  to  strike  out: 

action  of  court  in  case  of 20 

Municipal  ordinances: 

part  of  "  laws  of  the  land  " 113 

Murder : 

offense  of,  in  time  of  war 113 

Muster,  false: 

offense  of  making 103,  105 

offense  of  signing,  etc.,  roll  containing 105 

Mustering: 

persons  not  soldiers  as  soldiers 10.3 

receiving  money,  etc.,  for 103 

Mutiny : 

beginning,  exciting,  etc 106 

compelling  commander  to  surrender 110 

failing  to  report  and  suppress 106 

Nayy: 

deserter  from 34 

Neglect  of  duty: 

by  sentinel,  limit  of  punishment 57 

causing  damage  to  public  property 105 

form  for  charge  of 141 

in  failing  to  care  for  captured  property 104 

in  failing  to  surrender  criminals 113 

to  the  prejudice  of  good  order,  etc 115 

New  member: 

if  evidence  in,  not  to  sit 29 

record  regarding 63 


220  INDEX. 


Noisy  or  disorderly  conduct  in  quarters:  Page. 

limit  of  punisliment 50 

Nolle  prosequi: 

court  can  not  order 20 

23 


judge-advocate  can  not  enter 


Noncommissioned  officer: 

abuse  of  authority  by,  limit  of  punishment 56 

arrest  by,  under  24th  Article :  100 

arrest  of 8 

confinement  of 8 

disobedience  of  orders  of,  charged  under  C2d  Article  135 

disobedience  of  orders  of,  form  for  charge 141 

disobedience  of  orders  of,  limit  of  punishment 56 

encouraging  gambling,  limit  of  punishment 56 

insubordination  to,  limit  of  punishment 56 

jurisdiction  over,  by  general  court 15 

jurisdiction  over,  by  inferior  court 16,  130 

limit  of  punishment  of 59 

making  false  report,  limit  of  punishment 56 

punishments  for 49 

reduction  of,  by  summary  court 81 

reduction  of,  post  noncommissioned  staff,  etc 49 

using  threatening  or  insulting  language  to 56 

using  violence  to,  etc.,  when  quelling  quarrel 53 

Oaths : 

court  must  be  sworn  at  each  trial 29 

for  purposes  of  military  administration .'51,  121 

in  investigation  of  frauds,  etc .".1,  132 

of  enlistment 102 

of  members,  judge-advocate,  etc.,  of  courts-martial  29-31 
of  members,  recorder,  etc.,  of  courts  of  inquiry  __  87,  125 

procedure  during  administration  of 30 

profane,  penalty  for  using 112 

to  deposition 40 

Objection : 

to  question,  how  recorded 152 

Offense : 

act  as  both  civil  crime  and  military 14 

against  person  or  property  of  civilian 113 

joint  cliarges  for 17 

jurisdiction  as  regards 15 

no  person  tried  twice  for  same 122 

not  capital  and  to  the  prejudice,  etc 113 

penitentiary 51,  122 

statute  of  limitation  for 34,  122 


INDEX.  221 

Officer:  Page. 

charged  with  crime  to  be  arrested 6,  116 

in  arrest  furnished  copy  of  charges 7,  117 

jurisdiction  over  retired 14 

meaning  of  word  in  Articles  of  War 102 

retirement  of.     See  Retirement  of  officers. 

to  keep  good  order  in  his  command 112 

Officer  of  day: 

duties  respecting  prisoners  and  charges 9 

Orders : 

convening.     See  Convening  orler. 

general,  publishing  proceedings 69 

neglect  to  comply  with  standing 135 

of  contract  surgeon,  etc.,  disobedience  of 135 

of  a  noncommissioned  officer,  disobedience  of 135,  142 

of  an  officer,  disobedience  of 106 

of  an  officer,  disobedience  of,  form  for  charge 135 

trials  by  summary  court  not  published  in 80 

Organization : 

of  courts-martial _ 20 

Pardon : 

by  the  President 67 

by  the  reviewing  authority 66,  67,  81,  124 

of  penitentiary  prisoners 67 

Parole : 

penalty  for  changing 110 

Pay: 

false  certificate  relating  to,  penalty  for  signing 105 

forfeiture  of,  as  a  punishment 49 

forfeiture  of,  only  in  favor  of  United  States 50 

of  civilian  witness,  giving  deposition 41 

of  civilian  witness 43,  131 

of  civilian  witness,  tender  of 35,  38,  43,  131 

of  interpreter 28 

of  officer,  suspension  of 122 

of  reporter 28 

of  reporter,  form  for 186 

of  soldier  awaiting  sentence 69 

of  soldier  can  not  be  assigned  by  sentence 50 

of  soldier,  detention  and  retention  not  authorized        171 
Pay   Department: 

civilian  witness  paid  by 38,  45,  131,  176,  179 

forms  of,  for  account  of  civilian  witness 177-185 

form  for  account  of  reporter 186 

Instructions  regarding  payment  of  witness 179,  183 

interpreter  and  reporter  paid  by 28 


222  INDEX. 

Penitentiary :  Page. 

clemency  for  prisoner  confined  in 67 

confinement  in,  limit  of 51 

confinement  in,  offenses  punishable  by 51,  122 

erroneously  designated  in  sentence 68 

for  military  convicts,  at  Fort  Leavenworth,  Kans.  67 

sentence  of  confinement  in,  mitigation  of 67 

sentence  to  confinement  in,  what  to  state 61 

sentence  to  confinement  in,  when  legal 61 

unless  sentence  authorizes,  confinement  in,  illegal  68 

when  department  commanders  may  designate 68 

Perjury : 

false  swearing  distinguished  from 144 

form  for  charge 144 

limit  of  punishment 55 

Persuading  soldier  to  desert: 

limit  of  punishment 55 

offense  of 111 

Plea : 

accused  stands  mute 33,  121 

of  guilty,  statement  inconsistent  with 33 

of  guilty,  testimony  after 33 

special,  of  second  enlistment 34 

special,  of  statute  of  limitation 34 

special,  procedure  in  case  of 33,  34 

special,  to  the  jurisdiction,  etc 33 

special,  in  abatement  or  in  bar 33 

Post: 

abandoning,  etc 110 

sentinel  sleeping  on  or  leaving 109 

sentinel  sleeping  on  or  leaving,  forms  for  charges  137 

Post  commander: 

charges  laid  before  the 19 

charges  usually  presented  to,  by  old  ofiicer  of  day  9 
determines  when  and  what  cases  go  to  summary 

court 79,  82 

forwards  charges  for  serious  offenses 19 

forwards  completed  proceedings  of  certain  courts  76 
furnishes  company  commanders  copies  of  summary 

court  record 83 

furnishes  detail  to  execute  warrant  of  attachment  36 

may  use  discretion  regarding  trial  for  minor  offenses  82 

must  act  as  summary  court  in  certain  cases 78 

must  personally  investigate  charges  forwarded 19 

refers  charges  for  minor  offenses  to  summary  court  19 

reports  number  of  cases  tried  by  summary  court 76 


INDEX.  223 

Post  noncommissioned  staff :  Page. 

may  bo  discliarj,^ed  but  not  reduced 49 

unless  they  object,  may  be  tried  by  inferior  courts  16,  1^.0 
See  also  Noncomtnissioned  officer. 

Postponement : 

application  for,  when  made 31 

extended  delay  wanted 32 

on  account  of  absent  witness 32 

Post  return: 

officers  who  act  as  summary  court,  reported  on 83 

Precedence : 

military  ordinarily  gives,  to  civil  court 14 

President  of  a  court-martial: 

duties  of 23 

the  officer  highest  in  rank  on  court 23 

President  of  the  Tnited  States: 

as  confirming  authority 66,  76 

as  convening  authority 12,  13 

as  reviewing  authority 66 

limits  of  punishment  prescribed  by 51 

may  order  courts  of  inquiry 125 

must  appoint  court  in  certain  cases 13 

pardoning  power  of 67 

proceedings  of  courts  appointed  by,  forwarded  to 

Secretary  of  War 76 

proceedings  of  courts  to  be  confirmed  by,  forwarded 

to  Judge-Advocate-General 66,  76 

using  contemptuous  words  regarding 106 

PrcTious  convictions: 

by  civil  court,  inadmissible 48 

by  courts-martial,  evidence  of 47,  57 

consideration  of 19 

consideration  of,  by  summary  court 80 

effect  on  punishment 48,  58 

evidence  of,  how  recorded 156,  159 

evidence  of,  submitted  with  charges 19,  58,  80 

evidence  of,  when  admissible 57 

evidence  of,  when  received  by  court 48 

meaning  of 47 

not  limited  to  those  for  similar  offenses 48 

proper  evidence  of 48,  58 

Prisoners : 

abatement  allowed 72 

confinement  of,  after  trial 70 

confinement  of,  before  trial 8 

counsel  for 25 


224  INDEX. 

Prisoners — Continued.  Paj;e. 

duty  of  officer  receiving 9 

escaped,  effects  of 71 

forwarded  to  place  of  confinement 71 

not  to  be  arraigned  in  irons 21 

penitentiary,  clemency  for 67 

placed  in  irons,  report  regarding 70 

releasing  without  authority,  offense  of 117 

report  of,  when  and  by  whom  made 9 

suffering  to  escape,  form  for  charge 141 

suffering  to  escape,  limit  of  punishment  for 5G 

when  to  be  separated 8,  9 

without  charges  against,  when  released 9 

Procedure  of  courts-martial.     See  Couris-martial. 

Proceedings  of  courts-martial: 

action  on,  by  reviewing  authority 65 

application  for  copy  of 27,  76,  145 

appointed  by  the  President 76 

authentication  of 24,  63 

communications  relating  to 76 

general,  revised  by  Judge-Advocate-Gencral 75 

general,  where  filed  and  kept 75 

inferior,  where  filed  and  kept 77 

orders,  general,  publishing 69 

orders,  publishing,  how  dated 69 

requiring  confirmation  by  the  President 66,  75 

See  also  Record  of  proceedings. 

Proceedings  of  courts  of  inquiry: 

authentication  of 126 

record  of,  as  evidence 126 

Profanity : 

penalty  for  using 112 

Prosecutor : 

can  not  convene  general  court 13 

Provisions : 

violence  to  persons  bringing,  to  camp 112 

Public  stores: 

taken  from  enemy,  secured  for  United  States 104 

Punishment: 

ball  and  chain 49 

branding  prohibited 49,  122 

by  carrying  heavy  log  forbidden 50 

discretionary  or  fixed 49 

effect  of  previous  convictions  on 58,  59 

flogging  forbidden 49,  122 

for  contempt  of  court 122 


INDEX.  225 

Punishment — Continued.  Pago. 

forfeiture,  in  favor  of  T'nited  States  oulj- HO 

for  officers 49 

for  soldiers 40 

guard  duty,  as,  forbidden 50 

imprisonment  beyond  term  of  enlistment 14,  i:50 

limits  of.     See  Maximum  limits  of. 
of   post   noncommissioned   staff   and   hospital    ser- 
geants  (1st  class)   49 

proper  amount  of 49 

penitentiary 51,  122 

power  of  reviewing  authority  respecting CT 

solitary  confinement 50.  60 

substitutions  for  prescribed 60 

tattooing  forbidden 49,  122 

Quarrels : 

authority  to  quell 106 

refusing  to  obey  noncom.  otficer  quelling,  limit 5.') 

Quarters : 

lying  out  of,  without  leave lOS 

Quitting  guard: 

form  for  charge 137 

limit  of  punishment 55 

offense  of 110 

Quorum: 

for  general  court 12 

Rank: 

loss  of,  as  punishment . 49 

of  members  of  courts 22 

of  militia  officers  on  duty  with  regulars 126 

of  regular  and  volunteer  officers 126 

suspension  from 49 

Rape: 

offense  of,  in  time  of  war ll.'J 

Recommendation  to  clemency: 

not  to  be  embraced  in  sentence 65 

who  should  sign 65 

Recess : 

form  for  recording 155 

Record  of  proceedings : 

accurate,  to  be  kept 63 

accused  entitled  to  copy  of 125 

application  for  copy  of 76 

authentication  of 24,  63,  126 

copy,  if  furnished  during  trial 27 

copy,  carbon,  disposition  of 27 

50963 15 


226  INDEX. 

Record  of  proceedings — Couliiiiu  d.  Page. 

copyable  ribbon  to  be  used ^_  G'A,  147. 

daily,  subscribed  by  judge-advocate 24,  0:5 

disposition  of 75 

documents  made  part  of IZto 

forms  for.     See  Forms. 

forwarded  to  reviewing  autliority 24 

hours  of  session  noted  in 148,  157,  158 

loan  for  use 45 

must  contain  a  complete  history  of  case 64 

of  closed  session 64 

of  summary  courts,  copies  furnished 83 

pi'esence  of  members,  how  recorded 148 

previous  convictions,  evidence  of,  recorded 156,  159 

reading  of  record  of  preceding  day 63 

recommendation,  where  recorded 65 

revision    of 65 

statement  of  accused,  when  written,  signed,  etc 155 

statement  of  service — not  part  of  record 64 

See  also  Proceedings  of  courts-martial. 

Recruits : 

articles  of  war  to  be  read  to 102 

Redress  of  irrongs: 

of  citizens 112 

of  officers 108 

of  soldiers lOS 

Reduction  to  ranlts: 

as  a  punishment 40 

by  summary  court 1 81 

form  for  sentence  for 170 

in  case  of  previous  convictions 59 

of  first-class  privates 59 

of  noncommissioned  officers 59 

prohibited  as  to  post  noncommissioned   staff  and 

hospital  sergeants  (1st  class) 49 

Regimental  courts-martial.     See  Courls-mariiaJ. 

Regulations : 

part  of  written  militarj^  law 6 

Relieving  the  enemy : 

offense  of 110 

Remission: 

of  forfeiture 69 

of  sentence 67,  81,  124 

Reporter : 

how  authorized 26,  87,  89,  187 

mileage —  185 


INDEX.  227 

Reporter — Continued.  Page, 

no  compensation  for,  if  in  Government  service  —  28 

oath  of '■ 31 

pay  of 27,  90 

pay  of,  form  for  account 180 

sworn  in  eacli  case 'sO 

Report,  false: 

by  noncommissioned  officer,  limit  of  punisliment  —  56 

Report  of  summary  court  cases : 

form  for 161 

forwarded  montlily 77,  130 

where  filed —  77,  130 

Report  of  surgeon  ou  deserter: 

form  for 145 

Reprimand : 

as  a  punishment 49 

Reproachful  language: 

penalty  for  using 107 

Retainers  to  camp: 

jurisdiction  over ^ 15 

Retired  officers: 

ineligible  as  members  of  courts 11 

jurisdiction  over  _. 14 

Retired  soldiers: 

jurisdiction  over 14 

Retirement  of  officers: 

on  finding  of  retiring  board.      See  ReUring  hoards. 
On  promotion   examination   (act  of  October  1,  1890)  — 

disability  in  line  of  duty,  with  higher  rank 97-101 

finding  by  board 97 

finding  of  board,  action  on 100,  101 

line  of  duty,  meaning  of 97,  98 

record,  authentication  of 100 

Retiring  boards: 

challenge  for  cause 91,  92 

constitution  and  composition 89 

counsel  before 90 

finding 94 

finding,   action   on 95 

finding,  cause  of  disability 92,  93 

finding,  conclusive 95,  96 

form  for  order  and  record : 166 

hearing,  right  of  officer  to 90 

oath  of  members 91 

oath  of  recorder  91 


228  INDEX. 

Retiring  boards — Continued.  Pago. 

powers  of 01 

procedure  of 1)1.  1)2 

proceedings,  record  of KJO 

recorder  of 81) 

stenograpliic  reporter  for 81),  187 

See  Retirement. 

Kotreat : 

failing  to  retire  at,  offense  of 109 

Returns : 

false,  penalty  for  making 10:5 

of  regiments,  etc.,  made  monthly 10;> 

penalty  for  not  making lOo 

Reviemng  authority : 

action  of  the  President  as CO 

approval  of  sentence Gr> 

can  not  change  finding 47 

can  not  change  sentence 08 

can  not  delegate  authority 00 

can  not  increase  punishment  awarded 08 

can  not  postpone  sentence  of  dishonorable  discharge  01) 

may  change  place  of  confinement 08 

may  direct  revision  of  record 0") 

mitigation  by 07,  81.  124 

mitigation  by,  for  long  confinement  before  trial  -_  00 

of  garrison  court 84 

of  general  court 05 

of  regimental  court 8.5 

of  summary  court 81 

orders  of,  publishing  proceedings GO 

orders  of,  remitting  forfeiture 00 

pardoning  power  of 07 

suspension  of  sentence  by 07 

Revised  Statutes: 

certain,  part  of  written  military  law 0 

section  i;{4;5,  as  to  spies l-'7 

sections  HiiOO  and  5;51.j,  as  to  trading  with  enemy  ll!7,  128 

Revision  of  record : 

by  whom  directed 0.5 

can  only  be  made  by  court 05 

form    for 158 

Reward  for  apprehension: 

when  slopped  against  soldier's  pay 50 

Rohber  y : 

offense  of,  time  of  war H-*^ 

to  the  prejudice  of,  etc.,  limit  of  punishment 55 


INDEX.  229 

Safeguard :  Page. 

penally  lur  forcing ll.'i 

Sale  of  victuals,  etc.: 

duty,  etc.,  upon  or  interest  in 105 

Seating  of  court: 

arrangement  of  seats 21 

members  sit  in  order  of  ranli 22 

Secretary  of  AVar: 

application  for  clemency  forwarded  to 07 

applied  to  when  expert  witnesses  are  necessary  __  4;'> 

approval  of,  for  confinement  in  State  penitentiary  G8 

certain  proceedings  forwarded  direct  to 24 

Sedition: 

beginning,  exciting,  etc 106 

failure  to  report  or  suppress 106 

Selling  clothing,  etc.     See  Clothiiifj,  etc. 

Sentence : 

abatement  of,  for  good  conduct 72 

approval  by  reviewing  authority 65,  66 

confirmation  by  the  President 66 

contemplating  payment  of  stated  sum 62 

date  of  commencement  of 69,  72 

dishonorable  discharge,  effect  on  unserved  confine- 
ment    73 

forfeiture  for  certain  number  of  months 62 

forms  for 170 

imposing  tours  of  guard  duty,  forbiddtni 50 

in  excess  of -legal  limit 61) 

meaning  of  word  days  in 72 

mitigation  for  confinement  before  trial 69 

not  operative  before  confirmation 69 

of  an  officer  for  cowardice  or  fraud 122 

of  death,  confirmation  of 123 

of  death,  suspension  of 67,  124 

of  death,  vote  upon 61,  122 

of  dismissal  in  time  of  peace . 123 

of  dismissal  in  time  of  war 124 

of  dismissal,  suspension  of 67 

pardon  or  mitigation  of GO.  81,  124 

penitentiary  erroneously  designated  in 68 

procedure  when  awarding 61 

punishment  discretionary,  limit  ascertained 60 

recommendations  not  embraced  in 65 

respecting  general  oflBcers ; 124 

reviewing  authority  can  not  change 68 

second,  begins  when 73 


2:]0  INDEX. 

Heutence — Continued.  I'sige. 

to  confinement  at  post (Jl,  62 

to  confinement,  bej,nns  wlien ('/.),  71 

to  confinement  in  penitentiary  for  over  one  year  __  QH 

Sentinel: 

allowing  prisoners  to  olitain  liquor,  limit  of  pun- 
ishment     r»T 

disclosing  or  changing  watchword 110 

disrespect  to,  limit  of  punishment 57 

drinking  with  prisoner,  limit  of  punishment 57 

leaving  post  before  being  relieved 100 

quitting  post  to  pillage 110 

resisting  or  disobeying,  limit  of  punishment 57 

sleeping  on  post,  form  of  charge 1M7 

sleeping  on  post,  offense  of 100 

suffering  prisoner  to  escape,  form  of  charge 141 

suffering  prisoner  to  escape,  limits  of  punishment  5G 

Soldier : 

charged  with  crimes  to  be  conlined llO 

effects  of  deceased,  disposition  of 127 

jurisdiction  over  retired 14 

meaning  of  word  in  Articles  of  War 102 

Solitary  confinement: 

limit  of 50,  (50 

Special  orders.     See  General  and  special  orders. 

Specification: 

instructions  for  drawing 18 

Spy: 

confirmation  of  sentence  of 12r» 

jurisdiction  over 15 

statute  relating  to 127 

Standing  mute.     See  Plea. 

Standing  order: 

neglect  to  comply  with ];*.5 

Statement : 

accused  may  sul)mit 40 

inconsistent  with  plea 8.S 

record  of 155 

Statement  of  service: 

form   for    145 

not  part  of  record 64 

to  accompany  charges 19 

Statute  of  limitation.      See  LuiiUation,  tilatulc  of. 


INDEX.  231 

Stores :  Pago. 

accountability  for  military 104 

military,   lost,  spoiled,  etc 105 

public,  taken  from  the  enemy 104 

Striking  superior  officer: 

form  for  charge 135 

ofifense  of 106 

Subpoena   (or  Summons)  : 

by  civil  court 42 

forms  for 171-173 

officer  or  soldier  receiving 42 

proof  of  service 35 

sent  through  military  channels 35 

sent  with  interrogatories 40 

service  of 35,  3G 

Substitution  of  punishment: 

rule  for 60 

Suffering  prisoners  to  escape: 

forms  for  charges 141 

limits  of  punishment 56 

Summary  court.     See  Courts-martial. 

Sunday : 

trials  on,  by  summary  court 82 

Superintendent,  U.  S.  Military  Academy: 

convenes  courts  for  trial  of  cadets 13 

Surgeon : 

contract,  ineligible  as  member  of  court 11 

report  of,  to  accompany  charges 20 

report  of,  to  accompany  charges,  form  for 145 

Surrender : 

compelling  commander  to 110 

Suspension: 

as  a  punishment 49 

from  rank  and  command 49 

of  pay  and  emoluments 122 

of  sentence  of  death  or  dismissal 67,  123,  124 

Tattooing: 

as  a  punishment,  forbidden 49,  122 

Territoriality : 

as  affecting  jurisdiction 14 

Testimony : 

corrections  in 63,  152 

reading  of 63.  152 


232  INDEX. 

Threatening  and  insuUinsr  languase  :  Page. 

limit  of  punishment  for  usinj,',  to  noncom.  officer 56 

Trading  with  the  enemy: 

statutes  relating  to 127,  128 

Trial : 

delay  in,  by  summary  court 79 

for  officers  summarily  dismissed 15 

hours  of.     See  Hours  of  session. 

on  Sunday,  by  summary  court 82 

postponement  of 31,  121 

second,  for  same  offense 122 

Typewriter : 

copyal)le  ribbon  to  be  used  in  court-martial  records  G3,  147 

Uniform : 

of  accused •     21 

of  judge-advocate 21 

of  members- 21 

of  military  witnesses 21 

Veterinarians.     See  Contract  surgeon,  etc. 

Victuals,   etc.: 

duty  upon  or  interest  in 105 

Voire  dire: 

examination  on 29,  149 

Volunteers : 

officers  of,  as  members  of  court 11 

regular  officers  can  not  try 11,  118 

Vote : 

method  of  taking 22,  61 

tie 22 

upon  death  sentence Gl,  122 

Warrant  of  attachment: 

by  whom  issued 36 

force  necessary  to  execute 36 

form  for   174 

officer    executing,     served    with     writ     of     habeas 

corpus    36 

procedure  in  issuing 36,  37 

summary  court  can  not  issue 79 

Watchword : 

penalty  for  disclosing  or  changing 110 

Witness : 

accused  as 45 

attachment  of.     See  Warrant  of  attachment. 

attendance  of,  civilian,  how  procured 36 

attendance  of,  in  capital  or  special  cases 41 


INDEX.  233 

Witness — Continued.  Page. 

attendance  of  military,  how  procured 38,  40,  42 

attendance  of,  witliout  State,  etc o9,  41 

civilian,  refusing  to  appear  or  testify,  punishable  37,  43,  131 

departure  of 42 

deposition  of.     See  Deposition. 

examination  of,  manner  of 46 

examination  of,  rules  to  be  followed 45 

examination  of,  witnesses  separated 45 

experts,  employment  and  pay  of 43 

fees  of,  before  civil  court 43-44 

fees,  etc.,  of,  payable  by  Pay  Department 45 

fees  of,  certificate  of  attendance 44 

fees  of  civilian,  in  Government  employ 43 

fees  of  civilian,  not  in  Government  employ 44 

fees  of  civilian,  payment  or  tender  of 35,  43,  131 

fees  of,  forms  for  accounts 177-182 

fees  of,  instructions  regarding 179-185 

oath  of 24,  30 

privilege  of 39,  45,  131 

uniform  of 21 

Wounding: 

with  intent  to  kill,  etc.,  in  time  of  war 113 

Wrongs:     See  Redress  of  wrongs. 


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